October 28, 2019
Lawsuits Against the Federal Government:
Basic Federal Court Procedure and Timelines
In Alexis De Tocqueville’s classic 1835 work, Democracy
district, the locations of the plaintiff and plaintiff’s counsel,
in America, the author observed how important judicial
or other factors.
procedures were to the United States political fabric: “There
is virtually no political question in the United States that
Once the complaint is filed and the government receives
does not sooner or later resolve itself into a judicial
notice of the action, the case follows ordinary procedures.
question.” This quote resonates today as the courts continue
One exception arises if a third party seeks to participate in
to be the center of a number of closely watched matters. In
the case through a “motion to intervene”—if granted, that
recent years, plaintiffs have brought cases challenging, for
party could participate to the full extent as any other party.
instance, the President’s proclamation restricting the entry
Barring an intervention (which could occur at any time), the
of certain non-U.S. nationals into the United States, the
typical next step is a response from the defendant, such as a
Secretary of Commerce’s decision to include a citizenship
motion to dismiss or an answer to the complaint. Assuming
question on the 2020 Census, and the President’s decision
the court denies a motion to dismiss, the parties proceed to
to expend certain funds for constructing a “border wall.”
discovery (the process by which parties exchange
Because the defendant in these cases is invariably the
evidence). The parties may settle the case at any time, and
United States or an executive official, they generally
many cases end in settlement. Absent settlement, the judge
proceed in federal courts. Understanding the common
may resolve the case based on a motion if the evidence is
procedures governing the federal courts allows legislative
indisputable or the case may proceed to trial to resolve any
branch observers to plan for potential outcomes, estimate
factual disputes. Litigation is not known for its alacrity;
timelines, and appreciate the importance of a court’s ruling
according to the Administrative Office of the U.S. Courts,
at a particular stage. This In Focus reviews the most
civil cases across the United States have a median length of
common procedures that govern such cases, tracing the path
27 months from filing to trial, and about 16% of cases have
from federal district court to the Supreme Court.
been pending for over three years.
The District Court—from Complaint
Motion for Preliminary Injunction
to Preliminary Injunction
In many lawsuits challenging government action, the
plaintiff may elect to file a motion for preliminary
From Filing to Judgment
injunction (PI). A PI is a court order designed to protect a
The first step in a typical civil case is filing the complaint—
plaintiff before a full trial on the merits. An injunction can
the document that sets forth the plaintiff’s case. The
protect a plaintiff by preventing a law or policy from going
complaint must contain three main elements. First, the
into effect. The motion for PI can be filed even before the
complaint must show that the court has jurisdiction.
defendant files any pleadings (a motion for a PI may even
Second, the complaint must set forth plausible allegations
be preceded by a motion for a temporary restraining order,
that the defendant has violated the law in some way.
before the defendant is even served). A plaintiff seeking a
Finally, the complaint must contain a demand for relief that
PI must establish that (1) he is likely to succeed on the
would remedy the plaintiff’s harm. In many cases seeking
merits; (2) he is likely to suffer irreparable harm in the
to halt allegedly unlawful government action, the plaintiff’s
absence of relief; (3) the balance of equities tips in his
complaint will contain a request that the district court enter
favor; and (4) an injunction is in the public interest.
an injunction—that is, an order commanding the
government either to do or refrain from doing some act.
Although a PI is, by definition, preliminary to the final
determination of the case, it nonetheless is important. Cases
Ordinarily, cases are filed in the lowest tier of the federal
involving government action are often time-sensitive, and
court system, known as the district court. Each of the 50
even a temporary halt can be a substantial obstacle. In
states (plus the District of Columbia and Puerto Rico) has at
addition, as noted above, the first PI factor requires the
least one federal district court staffed by life-tenured
plaintiff to demonstrate a likelihood of success. Thus, as a
judges; some states have as many as four districts. Each
practical (though not formal) matter, the district court’s
district court is composed of several judges, one of whom is
decision on the motion for PI may indicate how the court
assigned to each case. Where the events giving rise to the
will ultimately resolve the case.
case are localized, generally, the plaintiff must file in the
local district. However, in many suits against the federal
government, the plaintiff can file in multiple districts. As a
result, plaintiffs often seek to file in the most favorable
jurisdiction for their claims. The plaintiff’s choice may
hinge on the perceived inclinations of the judges in a given
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Lawsuits Against the Federal Government: Basic Federal Court Procedure and Timelines
The Federal Court of Appeals—from
The federal rules of appellate procedure provide that in a
Appeal to Petition for Rehearing En Banc civil case involving the United States, parties have 45 days
to petition for rehearing, and a decision does not go into
Appeal at the Federal Court of Appeals
effect until that period (+7 days) expires or the petition is
The second tier of the federal court system is the U.S.
denied.
Courts of Appeals. The various district courts are divided
geographically into 12 regional courts of appeals, known as
The Supreme Court
“Circuits,” as well as the “Federal Circuit,” which handles
For the Supreme Court’s purposes, the decision of the
only cases involving certain narrow subject matters, such as
appellate court becomes final either after a panel decision
patent law. Each circuit has a number of judges—the
of which no party seeks rehearing or after the lower court
largest, the Ninth Circuit, has over 40—but typically only
resolves any petition for rehearing. At that time, the losing
three judges are initially assigned to any given appeal.
party may ask the Supreme Court to exercise its discretion
Either party that loses below on an issue may file an appeal,
to review the lower court decision through a “writ of
sometimes leading to “cross-appeals” where both parties
certiorari.” The Court’s rules provide that parties have 90
appeal a different aspect of the same decision.
days from the lower court’s final decision or denial of
rehearing to file a petition. In extremely rare cases, a party
Generally, no party can file an appeal until the district court
can skip some of the previous steps to petition the Supreme
issues a final decision in the case as a whole. However,
Court directly, but typically only on limited issues that are
there are exceptions to this principle. Where a case involves
both important and time-sensitive.
an issue of particular importance, the government may seek
an early appeal to avoid discovery and a lengthy trial
Four of the nine Justices must vote to grant certiorari for the
process. Moreover, with respect to a motion for a PI, the
Supreme Court to take up review. The Court’s rules state
losing party can appeal a district court’s order either
that a writ will be granted only for “compelling reasons,”
denying or granting the motion.
and explains that a grant is more likely when the petition
concerns, among other things, a split between circuit courts,
After the appeal is filed, barring any motions filed before
a departure from previous Supreme Court case law, or an
the Court of Appeals, the parties file briefs explaining why
undecided issue of federal law. The Court receives
the district court’s decision should be affirmed or reversed.
approximately 8,000 petitions annually and grants
Generally, the parties may not present new evidence or
approximately 70-80. The Supreme Court is more likely to
arguments at this time—the three-judge panel is simply
grant a challenge to an important federal government
tasked with determining whether the lower court erred in
policy. For example, one commentator has estimated that
applying the law to the facts. In most high-profile or
the Court has granted 70% of discretionary petitions filed
difficult cases, the case culminates in oral argument.
on behalf of the United States.
There is no clear timeline for a case to proceed from appeal
If the Court grants the petition, the parties brief the case. At
to decision. In a case where the United States is a party, the
that point, it is common for interested outside parties to file
appealing party must file its appeal within 60 days after the
“amicus briefs” expressing their views on the controversy.
order being challenged is entered. Briefing the appeal and
Although amicus can also participate in the lower courts,
scheduling oral argument also take time, and each of the
the high-profile nature of Supreme Court review often
circuits has different local rules and caseloads affecting the
draws additional participants. Finally, the Supreme Court
amount of time before argument. Local rules may
usually conducts oral argument before issuing its decision.
accelerate the timeline in some respects, particularly for PI
appeals. According to the official statistics of the Ninth
Time frames at the Supreme Court can vary. According to
Circuit, the nation’s largest federal appellate court, the
the Court, it can take approximately six weeks to act on a
median time from notice of appeal to decision was
petition. Ordinarily, the Court grants petitions on a regular
approximately 12 months in 2018.
basis while it is in session (October-June). Oral argument is
typically scheduled months after a petition is granted, and
Petition for Rehearing and Rehearing En Banc
grants after January are typically carried over for argument
Once a three-judge panel issues a ruling, any party who
the following October. Writing the opinion also takes time;
loses has the option of filing a petition for rehearing by the
on average, for the October 2018 Term, the Court took 97
same panel or rehearing en banc. Rehearing en banc
days from the argument to issue a decision.
generally entails the panel’s decision being reconsidered by
all active judges in a circuit (The Ninth Circuit uses a
However, the Court can alter these time frames. For
partial-court en banc process). A party seeking rehearing or
example, in the Census case noted above, the petition was
rehearing en banc must file a petition, usually arguing that
granted in February but the case was decided by the end of
the panel’s opinion is inconsistent with circuit or Supreme
June. Similarly, in the 2000 election case, Bush v. Gore, the
Court precedent. While circuits differ in their rules, a
case was briefed, argued, and decided within a few days,
petition for rehearing en banc is generally circulated to all
suggesting the Court can act quickly if needed.
of the active judges on the circuit, and a majority vote of
active judges in the circuit is typically needed to grant the
Wilson C. Freeman, Legislative Attorney
petition.
IF11349
Petitions for rehearing en banc are rarely granted; in 2018,
the Ninth Circuit granted only eight out of 955 petitions.
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Lawsuits Against the Federal Government: Basic Federal Court Procedure and Timelines
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