28 U.S.C. § 1361 · Artt. 31 e 117 c.p.a. · Art. 9-ter, L. 91/1992
Two legal traditions confront the same pathology — the application that sits undecided on a government desk — with instruments that look nothing alike and accomplish nearly the same thing. A comparative study in immigration and citizenship delay.
Every administrative state produces the same failure in the same way: an agency that is obligated to decide, and does not. The American answer descends from the prerogative writs of the Court of King's Bench. Mandamus crossed the Atlantic with the rest of the common law, supplied the procedural frame of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and was finally extended to every federal district court by the Mandamus and Venue Act of 1962, now 28 U.S.C. § 1361. Alongside it, the Administrative Procedure Act obligates agencies to conclude matters “within a reasonable time” (5 U.S.C. § 555(b)) and instructs reviewing courts to “compel agency action unlawfully withheld or unreasonably delayed” (5 U.S.C. § 706(1)). In immigration practice the two theories are pleaded together so routinely that they have effectively fused — a point treated at length in my APA-versus-mandamus analysis.
Italy, a civil-law jurisdiction, never received the writ system. It arrived at the same destination by a different road. Article 113 of the Italian Constitution guarantees judicial protection against acts of the public administration without exception. Article 2 of Law No. 241 of 1990 — Italy's administrative procedure act — converts that guarantee into a concrete rule: every administrative procedure must be concluded with an express decision (provvedimento espresso) within a fixed statutory term. When the term expires in silence, the applicant holds a cause of action against the silence itself — the azione avverso il silenzio-inadempimento, governed by Articles 31 and 117 of the Code of Administrative Procedure (Codice del processo amministrativo, Legislative Decree No. 104 of 2010).
The comparison is not academic decoration. My practice sits exactly at the junction of these two systems: Italian nationals waiting on USCIS or the Department of State on one side, and — in my earlier formation as an Italian law graduate — the parallel world of applicants waiting on the Ministero dell'Interno on the other. What is striking, once the two are set side by side, is how completely the systems converge in principle and how sharply they diverge in machinery.
The table below maps each element of the American delay action onto its Italian counterpart. The pattern that emerges is consistent: where American law leaves a question to judicial judgment, Italian law tends to answer it by statute — and where American remedies stop at ordering the agency to act, Italian remedies keep going.
| United States | Italy | |
|---|---|---|
| Legal source | Common-law prerogative writ; Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); codified at 28 U.S.C. § 1361 (1962); APA, 5 U.S.C. §§ 555(b), 706(1) | Art. 113 Cost. (judicial protection against the administration); art. 2, L. 241/1990 (duty to conclude); artt. 31 & 117 c.p.a. (D.Lgs. 104/2010) |
| Duty enforced | A “discrete agency action” that the agency “is required to take” — Norton v. SUWA, 542 U.S. 55, 64 (2004); ministerial, never discretionary | The obbligo di provvedere: the duty to close the procedure with an express decision within the term; the content of the decision remains discretionary |
| Trigger | Delay becomes “unreasonable” under the rule of reason of TRAC v. FCC, 750 F.2d 70 (D.C. Cir. 1984) — no bright line, all circumstances weighed | Expiry of the statutory term; once the term passes without a decision, the illegitimacy of the silence is essentially automatic |
| Prior demand | None required — though a documented record of status inquiries strengthens the TRAC showing | None required — the 2010 code abolished the old diffida (formal notice) prerequisite; the action lies as long as the inaction persists |
| Time to sue | Any time while the delay continues | While the inaction persists, and no later than one year from the expiry of the term (art. 31, co. 2 c.p.a.); after that, the underlying application may be renewed and the clock runs anew |
| Competent court | Any U.S. district court with proper venue — hence the government's venue-transfer motions and the plaintiff's choice-of-forum calculus | The TAR territorially competent for the authority; for citizenship by naturalization, TAR Lazio in Rome — since late 2021 through a specialized section, Sez. V-bis |
| Procedure | Plenary civil action: complaint, Rule 4(i) service, sixty-day government answer, dispositive motions | Summary track: decided in chambers (camera di consiglio) by simplified judgment (sentenza in forma semplificata) — built for speed |
| Scope of judgment | Order to adjudicate, never to approve — unless the outcome itself is nondiscretionary | Identical principle: the judge may reach the merits of the application (fondatezza) only where the activity is fully bound (vincolata) — art. 31, co. 3 c.p.a. |
| Enforcement | Contempt power in theory; in practice, retained jurisdiction and status reports | Order to decide within a fixed term (art. 117 c.p.a.); a commissario ad acta who decides in the ministry's place; the giudizio di ottemperanza (artt. 112–114 c.p.a.); monetary penalties (astreinte, art. 114, co. 4, lett. e) |
| Fees and costs | American rule; fee-shifting possible under the Equal Access to Justice Act | Loser pays (soccombenza): litigation costs are routinely assessed against the losing administration |
In the United States, no statute tells USCIS when an I-130 or I-485 must be decided; “unreasonable” is constructed case by case, and most of the litigation energy in a mandamus action is spent proving unreasonableness under TRAC. In Italy the legislature fixed the term in advance, so the plaintiff's case is nearly arithmetic: the term was twenty-four months; twenty-nine have passed; the silence is unlawful. Each design purchases something. The American approach flexes with agency workload and case posture; the Italian approach makes liability predictable but — as the Roman backlog shows — a deadline on paper does not process a single file by itself.
For readers who know American mandamus practice from the other pages of this site, the fastest way to grasp the Italian action is to walk its four procedural stations and note the American analog at each one.
Article 2 of L. 241/1990 sets a default term of thirty days for administrative procedures, displaced by special terms for specific matters — for citizenship by naturalization, the terms of art. 9-ter, L. 91/1992, discussed below. The day the term lapses without an express decision, the silence is legally cognizable. American analog: none — there is no clock to expire; counsel instead builds a record of the delay's length and consequences for the TRAC analysis.
The applicant files a ricorso under artt. 31 and 117 c.p.a. before the competent TAR, served on the ministry through the State's in-house counsel, the Avvocatura dello Stato. No prior formal demand is required, and the action remains available for one year after the term expires. American analog: the complaint, with Rule 4(i) service on the U.S. Attorney, the Attorney General, and the agency.
The case is heard in camera di consiglio and resolved by simplified judgment. If the silence is unlawful, the court orders the administration to decide within a fixed term — the code contemplates a term not exceeding, as a rule, thirty days (art. 117, co. 2), though in the citizenship docket the Roman court commonly allows sixty to ninety. American analog: the motion-to-dismiss fight and TRAC merits briefing — or, as often happens, the agency simply adjudicates the case and moots the action.
If the ministry lets the judicial term expire too, the court's appointee — the commissario ad acta, typically a prefect or a senior official designated in the judgment itself — steps into the administration's shoes and issues the decision in its place. Persistent non-compliance can also be pursued through the giudizio di ottemperanza and monetary penalties. American analog: there is none. No federal court will appoint an official to adjudicate your I-485; retained jurisdiction, status reports, and the theoretical contempt power are the outer limits.
Citizenship is where the two systems can be compared with the most precision, because both maintain a distinct legal regime for naturalization delay — and both have generated a specialized body of case law under docket pressure.
Italy. Naturalization by residence under art. 9, L. 91/1992 is a concessione — a discretionary grant involving an assessment of the applicant's integration and the public interest — so no court will order the ministry to confer citizenship. But the clock is statutory. Under art. 9-ter, L. 91/1992, applications filed before December 20, 2020 were subject to a forty-eight-month term; for applications filed from that date forward, the term is twenty-four months, extendable to a maximum of thirty-six (art. 4, co. 5, D.L. 130/2020, converted by L. 173/2020). When the term lapses, the silence action described above lies — and it is filed in Rome, because the respondent is the Ministero dell'Interno. The volume of these cases became so great that the TAR Lazio stood up a dedicated section, Sez. V-bis, in late 2021, staffed substantially for the citizenship docket. Its output is illustrative: in one representative decision, TAR Lazio, Sez. V-bis, judgment of September 28, 2023, No. 14359, the court declared the ministry's silence unlawful, ordered an express decision within ninety days, and pre-designated the director general of the competent Interior Ministry directorate as commissario ad acta in case of further inertia. The Consiglio di Stato — Italy's supreme administrative court — has in turn pressed the silence judgment toward greater practical effectiveness in recent years (see, e.g., Cons. Stato, Sez. IV, April 30, 2024, No. 3945).
United States. Most immigration benefits carry no statutory deadline at all; Congress's 180-day aspiration in 8 U.S.C. § 1571(b) is a “sense of Congress,” not a command. Naturalization is the exception that proves the design: 8 U.S.C. § 1447(b) lets the applicant take the N-400 to district court if USCIS fails to decide within 120 days of the examination — and the filing vests jurisdiction in the court, which may decide the application itself or remand with instructions. That remedy, treated in my N-400 delay analysis and the naturalization case study, is the closest American law comes to the commissario ad acta: a decision-maker other than the agency empowered to decide the application. A denied N-400, by contrast, gets de novo judicial review under 8 U.S.C. § 1421(c) — a separate track.
The silence action before the TAR governs naturalization — discretionary citizenship. Recognition of citizenship iure sanguinis (by descent) is instead a matter of status determination that belongs to the ordinary civil courts, an entirely separate track with its own venue rules and its own recent legislative upheaval. An American lawyer, accustomed to every federal citizenship question landing in a U.S. district court, should find the split instructive: Italy divides the judicial map by the nature of the right — discretionary interest to the administrative judge, subjective right to the civil judge.
Comparative law earns its keep when it stops cataloguing differences and starts explaining them. Three observations from litigating on the American side of this line with an Italian legal formation.
One: statutory clocks shift leverage, not throughput. The Italian plaintiff never has to prove the delay is unreasonable; the legislature already said so. That is an enormous litigation advantage — and yet Rome's twenty-four-month term coexists with a backlog severe enough to require a dedicated judicial section to process the resulting lawsuits. The lesson for American reform debates is sobering: a deadline reallocates power from agency to applicant, but it does not adjudicate a single file. The TRAC framework, for all its indeterminacy, at least directs the court's attention to the real question — what the agency's queue actually looks like and who is being harmed.
Two: the commissario ad acta is the remedy American practice lacks. When an Italian ministry defies a silence judgment, the court does not escalate rhetoric — it replaces the decision-maker. Nothing in § 1361 practice reaches that far; outside the special case of § 1447(b), federal courts compel decisions but never make them. The Italian design accepts a cost American doctrine refuses to pay — a judicial appointee exercising executive discretion — in exchange for an enforcement mechanism with real teeth.
Three: the systems converge exactly where it matters to clients. Neither orders the outcome. Norton's discrete-duty rule and art. 31, co. 3's vincolata limit are the same principle in two languages: delay remedies compel decisions, not results. On both sides of the Atlantic, the honest advice is identical — the lawsuit gets you an answer, and the strength of the underlying application determines what that answer is.
I hold a law degree from an Italian university and am admitted to practice in New York, New Jersey, Texas, and Missouri, with a federal practice concentrated in immigration mandamus litigation. The discussion of Italian law on this page is comparative scholarship, offered for educational purposes: it is not legal advice, and it is not Italian legal advice. If you need to bring a silence action before the TAR, retain an Italian avvocato; if USCIS or the Department of State is sitting on your case, that is the practice this site is about.
My commercial practice is federal immigration mandamus — compelling USCIS and the Department of State to act on unreasonably delayed applications, including the delayed cases of Italian nationals on both the immigrant and naturalization tracks. If you are looking at a USCIS delay and want a case evaluation, I litigate in federal district courts nationwide.
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