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Can I Sue the Department of Homeland Security (DHS)?

Yes, you may be able to sue the U.S. Department of Homeland Security (DHS) and its employees. The nature of your lawsuit will depend on what happened, who did it, and what you want to get out of it. More on that below.

Taking on the federal government is always a challenge. The cases are complicated, and the government's lawyers have tons of resources. If you are thinking about suing the government, you should strongly consider getting legal advice from an experienced attorney who can help you better understand your rights, explain your options, and represent you in court.

What Is the Department of Homeland Security?

DHS is one of only 15 cabinet-level departments of the federal government: it is responsible for public security. With more than 240,000 employees, it is the third largest federal department (after the Departments of Defense and Veterans' Affairs). It was formed in 2003 after the 9/11 attacks; its mission involves anti-terrorism, border security, cyber security, customs and immigration, and disaster prevention and management.

DHS is headed by the Secretary of Homeland Security. Within DHS, there are a number of federal agencies. The following list includes the most notable and a brief explanation of duties:

  • Transportation Security Administration (TSA): transportation security
  • Immigration and Customs Enforcement (ICE): detention and removal of non-citizens
  • U.S. Citizenship and Immigration Services (USCIS): immigration and citizenship benefit determinations
  • U.S. Customs and Border Protection (CBP): immigration and customs inspections and border patrol
  • Federal Emergency Management Agency (FEMA): supports people, especially first responders, in times of crisis

What Legal Claims Might You Bring Against DHS or its Agents?

People have bad encounters with DHS all the time. Some of those encounters might give rise to legal claims. What those claims might be depends on what DHS or its agents may have done and the relief you are seeking.

Federal Tort Claims Act

Your first claim may lie under the Federal Tort Claims Act (FTCA). The FTCA is a federal law that lets people sue the United States for the wrongful conduct of government employees that causes personal injury or property damage. If you wanted to sue the government for, say, negligence, you would sue under the FTCA.

You have to follow specific procedures under FTCA or you won't be able to file a lawsuit. You first must file a written claim with DHS within two years of when your claim arises or else you are barred. Your claim needs to be complete and must include an amount for the damages you are seeking.

DHS then has six months to investigate your claim and possibly reach a settlement with you. If you don't hear from DHS or are unable to settle with them within six months, then you may bring a lawsuit in federal district court.

There are limits on an FTCA claim. You present the case to a federal judge; you do not get a jury. The only damages the judge can award are compensatory damages (damages to compensate you for your actual losses). You cannot recover punitive damages (damages intended to punish the wrongdoer for outrageous conduct) or attorneys' fees. An experienced personal injury attorney would be able to provide you with legal advice about your claim and help you understand your rights.

A "Bivens" Claim

The second type of claim you may be able to bring is a Bivens claim (which is named after the case of that name). The Supreme Court has ruled in three situations the Constitution itself lets you bring a lawsuit:

  • If the government violates your Fourth Amendment right to be free from unreasonable searches and seizures
  • Where a Congressman was accused of gender discrimination by a staffer in violation of the Fifth Amendment
  • If a prisoner alleges cruel and unusual punishment in violation of the Eighth Amendment

Courts don't like recognizing new claims against federal officials, but a good civil rights attorney may be able to persuade a judge that your particular case should be added to this list.

Unlike an FTCA claim, which is brought against the United States government itself, a Bivens claim is brought against the employees of the government who harmed you. You also do not have to file a written claim with DHS before you can bring a Bivens claim in federal court.

You can recover more under a Bivens claim than you can under an FTCA claim. You can recover compensatory damages, punitive damages (damages intended to punish the wrongdoer for particularly outrageous behavior), and even attorneys' fees. If you need a court order telling those officials to do or not to do something in the future, which lawyers call “injunctive relief," you can get that in a Bivens case, too.

The major obstacle — and it is certainly a major obstacle — is the powerful defense that government employees can raise to a Bivens claim: qualified immunity. Generally speaking, government employees cannot be held liable for misconduct unless you can show that there was clear case holding the very same conduct unconstitutional.

Put simply, you have to show that someone else did virtually the same bad thing in the same way before and it was held to be illegal. This is really hard to do. So if you find yourself wanting to bring a Bivens claim, you may want to consider consulting an experienced civil rights attorney.

Writ of Mandamus

If you need a federal official to perform a duty they legally owe to you, you can seek what's called a writ of mandamus. These writs (essentially, orders) are hard to get, and courts don't like issuing them. You need to show three things:

  • The federal official has a legal duty to you to do something (for example, process your immigration application)
  • You have a clear right to the performance of that duty
  • There is no other adequate remedy available to you.

Imagine the government was holding up your application for U.S. citizenship for no reason. In that case you could file a petition (essentially, sue) for a writ of mandamus. If the federal judge issues the writ, you would have your application processed and you might become a U.S. citizen.

In a mandamus action, you sue the person or entity who owes you the legal duty. For example, if you want DHS to process your naturalization application, you would need to include the Secretary of DHS as one of the people on your petition.

Writ of Habeas Corpus

Suppose immigration is holding you for your deportation because it wrongly determined you were a threat to national security. If you have a reason to believe U.S. Immigration and Customs Enforcement (ICE) is detaining you illegally, you could seek what's called a writ of habeas corpus. “Habeas corpus" is Latin for “produce the body." You seek these writs in federal court to challenge the conditions or length of detention.

They, like writs of mandamus, are hard to get. You need to show that DHS has no legal basis for keeping you in custody. Courts are generally reluctant to interfere with DHS's enforcement actions, so you will likely have a battle on your hands. If you are thinking about seeking a writ of habeas corpus, you might want to consult a criminal defense attorney or an immigration attorney with specific experience in this area.

If You Need to Sue DHS, Consult an Attorney

Successfully suing the DHS is hard. The cases are complicated and the power of the government stands against you. You may not want to tackle the challenge on your own. Consider consulting an attorney who can help you better understand your legal rights and, if necessary, represent you in court.

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