Can I Sue the Department of Homeland Security (DHS)?
You can 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, consider getting legal advice from an experienced attorney. They 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 handles public security. With more than 240,000 employees, it is the third largest federal department (after the Departments of Defense and Veterans Affairs). It began in 2003 after the 9/11 attacks. Its mission involves anti-terrorism, border security, cybersecurity, customs and immigration, law enforcement, and disaster prevention and management.
The Secretary of Homeland Security manages DHS. Within DHS, there are several 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-citizen migrants
- U.S. Citizenship and Immigration Services (USCIS): immigration and citizenship benefit determinations
- U.S. Customs and Border Protection (CBP): immigration officers and customs inspections and border patrol
- Federal Emergency Management Agency (FEMA): supports people, especially first responders, in times of crisis
- Department of Justice (DOJ): advocacy and enforcement of federal laws led by the U.S Attorney General
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. Those claims depend on what DHS or its agents have done and the relief you seek.
Federal Tort Claims Act
Your first claim may lie under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346. 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 negligence, you would sue under the FTCA in U.S. district court.
You have to follow specific procedures under FTCA, or you won't be able to file a lawsuit. You must first file a written claim with DHS within two years of your claim arising, or else you will get barred. Your claim must be complete and include an amount for the damages you seek.
DHS then has six months to investigate your claim and possibly reach a settlement with you under the Administrative Procedure Act. If you don't hear from DHS or can't settle within six months, you may bring a lawsuit as a plaintiff 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 can advise you 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. 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 persuade a judge that your case should get added to this list.
Unlike an FTCA claim, which is against the United States government, a Bivens claim is against the government employees who harmed you. If you don't know who they are, you may be able to get their information through a Freedom of Information Act request (known as a "FOIA request"). You do not have to file a written claim with DHS before bringing a Bivens claim in federal court.
You can recover more under a Bivens claim than 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's certainly major — is the powerful defense government employees can raise to a Bivens claim: qualified immunity. Generally, government employees aren't liable for misconduct unless you can show that there was a clear case holding the same conduct unconstitutional.
You have to show that someone else did virtually the same bad thing in the same way before, and a court found it illegal. This is hard to do. If you want to bring a Bivens claim, 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 e 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 must 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 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 must 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. If you are thinking about seeking a writ of habeas corpus, 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. Don't tackle the challenge on your own. Consult an attorney with experience in civil liberties who can help you better understand your legal rights and, if necessary, represent you in court.