Lawsuits Against the Federal Government: Basic Federal Court Procedure and Timelines

Lawsuits Against the Federal Government: Basic Federal Court Procedure and Timelines

Updated December 22, 2020
Lawsuits Against the Federal Government:
Basic Federal Court Procedure and Timelines
Many federal laws and policy initiatives are challenged in
cannot succeed as a matter of law. The court may deny a
court. In recent years, for instance, plaintiffs have brought
motion to dismiss or may grant the motion with respect to
cases challenging the Department of Homeland Security’s
the case as a whole or only as to certain claims.
rescission of the Deferred Action for Childhood Arrivals
program, the Secretary of Commerce’s decision to include a
If the court does not grant a motion to dismiss in full, the
citizenship question on the 2020 Census, and the
case proceeds to discovery, the process by which parties
President’s decision to expend certain funds to construct a
exchange evidence. Once the factual record is sufficiently
“border wall.” Because the defendant in these cases is the
developed, either party (or both) may file a motion for
United States or an executive official, the cases generally
summary judgment, arguing that the other party cannot
proceed in federal court. By understanding the procedures
prevail in light of the applicable law and the undisputed
governing federal court litigation, legislators can consider
facts. The district court judge may resolve legal questions at
potential outcomes, estimate timelines, and appreciate the
this stage but may not resolve factual disputes. As with a
importance of a court’s ruling at a particular stage. This In
motion to dismiss, the court may grant summary judgment
Focus reviews the most common procedures that govern
in full or in part; it may also grant summary judgment in
civil suits against the federal government, tracing the path
favor of the plaintiff on some claims and in favor of the
from federal district court to the Supreme Court.
defendant on others. Claims that are not resolved through
dismissal or summary judgment generally proceed to trial
The District Court: From Filing to
for resolution of any material factual questions. While jury
Judgment
trials are available in some federal civil cases, most cases
The first step in a typical civil case is filing the complaint—
against the federal government are tried without a jury, with
the document that lays out the plaintiff’s case. The
the judge making the necessary factual findings.
complaint must contain three main elements. It must
(1) show that the court has jurisdiction, (2) set forth
Litigation is not known for its alacrity. According to the
plausible allegations that the defendant has violated the law
Administrative Office of the U.S. Courts (AO), civil cases
in some way, and (3) request relief that would remedy the
in the U.S. district courts have a median length of 27
plaintiff’s harm. In many challenges to government action,
months from filing to trial, and close to 10% of cases have
the complaint asks the district court to enter an injunction—
been pending for over three years. As an alternative to the
an order commanding the government either to do or refrain
cost and delay of litigation, the parties may settle the case at
from doing some act.
any time, and many cases end in settlement.
Ordinarily, cases are filed in the lowest tier of the federal
Motion for Preliminary Injunction
court system, known as the district court. Each of the 50
In many lawsuits challenging government action, the
states (plus the District of Columbia and Puerto Rico) has at
plaintiff files a motion for preliminary injunction (PI). A PI
least one federal district court staffed by judges who may
is a court order designed to protect a plaintiff before a full
serve for life; some states contain as many as four judicial
trial, often by temporarily preventing a challenged law or
districts. Each district court is composed of several judges,
policy from going into effect. A motion for PI can be filed
one of whom is assigned to each case. When the events
before the defendant files any pleadings (a plaintiff may
giving rise to a case are localized, the plaintiff generally
even move for short-term relief via a temporary restraining
must file in the local district. However, because federal
order before the defendant receives notice of a suit).
policies often affect broad geographic areas, a plaintiff
Plaintiffs seeking a PI must establish that (1) they are likely
suing the federal government may be able to file in any of
to succeed on the merits ; (2) they are likely to suffer
several districts. As a result, plaintiffs often seek to file in
irreparable harm absent a PI; (3) the “balance of equities”
the district they believe will be most favorable for their
tips in their favor—that is, denying a PI would harm the
claims. The plaintiff’s choice may hinge on the perceived
plaintiffs more than granting a PI would harm the
inclinations of the judges in a given district, the locations of
defendant; and (4) an injunction is in the public interest.
the plaintiff and plaintiff’s counsel, or other factors.
Although a PI is, by definition, preliminary to the final
Once the plaintiff files the complaint and serves the lawsuit
resolution of the case, it is nonetheless important. Cases
on the defendant, the usual next step is a response from the
involving government action are often time-sensitive, and
defendant. Most often, the defendant will file an answer to
even a temporary halt to a challenged law or policy can be a
the complaint, responding to the plaintiff’s claims and
substantial obstacle. In addition, as noted above, a plaintiff
presenting defenses, or a motion to dismiss, asking the court
seeking a PI must demonstrate a likelihood of success on
to dispose of the case without trial because the complaint
the merits. Thus, as a practical matter, the district court’s
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Law suits Against the Federal Government: Basic Federal Court Procedure and Timelines
decision on the motion for PI may indicate how the court
needed to grant a petition for rehearing en banc. Petitions
will ultimately resolve the case.
for rehearing or rehearing en banc are rarely granted. For
instance, in 2019, the Ninth Circuit granted 14 of 817
The Federal Court of Appeals
petitions for rehearing en banc. In a civil case involving the
The second tier of the federal court system is the U.S.
United States, parties generally have 45 days to petition for
Courts of Appeals. The various judicial districts are divided
rehearing. The court’s decision typically does not go into
geographically into 12 regional courts of appeals, known as
effect until seven days after that period expires, or until the
“Circuits,” plus the Federal Circuit, which handles only
court denies any rehearing petitions.
cases involving certain narrow subject matters, such as
patent law. Circuits have varying numbers of judges—the
The Supreme Court
largest, the Ninth Circuit, has over 40—but typically a
For the Supreme Court’s purposes, the decision of the
panel of three judges is assigned to each appeal.
appellate court becomes final either after a panel decision
of which no party seeks rehearing or after the appeals court
Generally, no party can file an appeal until the district court
resolves any petition for rehearing. At that time, the losing
issues a final decision in the case as a whole. However,
party may ask the Supreme Court to exercise its discretion
there are exceptions to that principle. Where a case involves
to review the lower court decision through a writ of
legal issues of particular importance, the government may
certiorari. The Court’s rules provide that parties have 90
seek an early appeal to avoid discovery and a lengthy trial
days from the lower court’s final decision or denial of
process. In addition, the losing party can immediately
rehearing to file a certiorari petition. In extremely rare
appeal an order either denying or granting a motion for PI.
cases, a party can skip some of the foregoing steps to
Either party that loses on an issue in district court may file
petition the Supreme Court directly, but typically only on
an appeal, sometimes leading to cross-appeals where both
limited issues that are both important and time-sensitive.
parties appeal different aspects of the same decision. By
statute, some cases, including many petitions for review
Four of the nine Supreme Court Justices must vote to grant
challenging actions by federal agencies, begin in the court
certiorari for the Court to take up a case. The Supreme
of appeals rather than the district court.
Court’s rules state that the Court will grant certiorari only
for “compelling reasons,” and explain that a grant is more
Similar to the motions phase in district court, parties before
likely when the petition raises issues such as a split between
a Court of Appeals may file motions to dismiss and motions
circuit courts, a departure from previous Supreme Court
for summary disposition asking the appellate court to affirm
case law, or an undecided question of federal law. The
or reverse the district court without full briefing and oral
Court receives approximately 7,000-8,000 petitions
argument. If no such motions are granted, the parties file
annually and grants about 80. However, the Supreme Court
briefs explaining why the district court’s decision should be
is more likely to consider a challenge to an important
affirmed or reversed. Generally, the parties may not present
federal government policy. For example, one commentator
new evidence or arguments on appeal—the three-judge
has estimated that the Court has granted 70% of
panel accepts the trial court’s factual findings unless they
discretionary petitions filed on behalf of the United States.
are clearly erroneous and considers whether the trial court
correctly applied the law to the facts. In most high-profile
If the Court grants certiorari, the parties brief the case. At
or difficult appeals, the case culminates in oral argument.
that point, it is common for interested outside parties to file
amicus briefs expressing their views on the controversy.
There is no clear timeline for a case to proceed from appeal
Amici can also participate in the lower courts, but the high-
to decision. In a case where the United States is a party, the
profile nature of Supreme Court review often draws
appealing party must file its appeal within 60 days of the
additional participants. Finally, the Supreme Court usually
challenged district court order. Briefing the appeal and
conducts oral argument before issuing its decision.
scheduling oral argument take time, and each of the circuits
has different local rules and caseloads affecting the amount
Time frames at the Supreme Court can vary. According to
of time before argument. Local rules may accelerate the
the Court, it takes an average of approximately six weeks to
timeline in some circumstances, including for PI appeals.
act on a certiorari petition. Ordinarily, the Court grants
According to the AO, between September 2019 and
petitions on a regular basis while it is in session (October-
September 2020, the median time from notice of appeal to
June). The Court typically schedules oral argument several
decision by an appeals court was approximately nine
months after a petition is granted and carries grants after
months.
January over for argument the following October. Writing
an opinion also takes time; one commentator reports that
Petition for Rehearing or Rehearing En Banc
for the October 2019 Term, the Court took an average of
Once a three-judge panel issues a ruling, any losing party
112 days after oral argument to issue a decision. However,
may file a petition for rehearing by the same panel or
the Court can alter these time frames. For example, in the
rehearing en banc. Rehearing en banc generally entails
Census case mentioned above, the Court granted certiorari
review of the panel’s decision by all active judges in a
in February 2019 and decided the case in late June of that
circuit (due to its large size, the Ninth Circuit uses a partial-
year. And the 2000 election case Bush v. Gore was briefed,
court en banc review process). A party seeking rehearing or
argued, and decided within a few days .
rehearing en banc must file a petition, usually arguing that
the panel’s opinion is inconsistent with circuit or Supreme
Joanna R. Lampe, Legislative Attorney
Court precedent. While circuits differ in their rules, a
majority vote of active judges in the circuit is typically
IF11349
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Law suits Against the Federal Government: Basic Federal Court Procedure and Timelines

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