How To Sue the Government Pro Se
This Medium blog post summarizes my book How To Sue the Government on Amazon.
Why Sue?
Do you have a grievance against the government? You might think that:
- Your grievance was bad luck.
- You had a unique situation that no one else has experienced, and no one else will ever experience again.
- A “bad apple” government employee was to blame.
- There’s nothing you can do about it.
- Nice people don’t file lawsuits.
I have news for you.
You didn’t have bad luck. It’s not the people working for the government. Government systems created your grievance.
You’re not in a unique situation. Thousands of Americans have likely experienced what happened to you.
There’s something you can do about it. You can sue the government, without an attorney, without spending more than a few dollars down at the Post Office.
Nice people file lawsuits because lawsuits change and improve government systems. Nothing is going to change if you don’t sue.
Blackletter Law vs. Case Law
Blackletter law means that the government action was clearly non-compliant with well-understood laws. You can research, write, and file a blackletter lawsuit yourself, without an attorney. Blackletter law cases rarely go to trial. Almost all are settled out of court.
Case law, also called common law, is the opposite of blackletter law. Case law is for laws that are open to interpretation, or cases where you have a new interpretation of a law, or where you have a new legal theory. In case law, you will go to trial and try to convince the judge about your interpretation of the law. Don’t try to do case law yourself. Hire an attorney and be prepared to spend hundreds of thousands of dollars, if not millions.
Timeliness—Injunctive Relief vs. Monetary Damages
Injunctive relief means a judge ordering a government agency to do something or not do something. Monetary damages are just that — a judge ordering the agency to pay you. This difference is crucial when suing the government. You can do one or the other in a lawsuit, not both. If you want both injunctive relief and monetary damages you’ll have to file two lawsuits, in two courts.
Injunctive relief is better, if you can get the agency to respond before you’ve suffered much harm. The faster you act, the easier it will be to resolve your grievance. The agency might respond to your lawsuit by fixing your problem, without waiting for a judge to issue an injunction.
But if you sit on your grievance for years, it’ll get harder to fix. The people involved will move on to other jobs, documents will become unavailable, and what would have been a simple fix will no longer be a solution.
What started as a problem in need of an injunction — a court order for a federal agency to do something or not do something — will devolve into monetary damages. No matter how much money you’re awarded, it’ll never be as good as the agency correcting its error right away.
Government Systems
It is much more satisfying to say there was a bad person, there was a criminal, than to deal with the outcome of government policy.
My experience has been that government officials don’t read the laws. People do what they were taught to do, what their colleagues do, or what they’ve done for thirty years.
Telling a government official what the law says does you no good, in my experience.
Most government systems work well and are compliant with the laws.[3] But sometimes government systems harm people. Some of these government systems are not compliant with the laws. That is what my book is about.
Books about human error management start by arguing against the “bad apples theory.” In this view, errors are caused by persons who are stupid, or poorly trained, or don’t follow the rules, or are just bad people. Instead, the human error experts write that human errors are caused by systems that set up people for failure.
In my experience, there are better systems available that will cost an agency nothing and require no additional effort from its employees. These systems will never change unless someone sues the agency. Your lawsuit will nudge the agency towards fixing its non-compliant — unlawful — systems.
Why Should I Not Sue?
If you lose, the court could order you to pay the defendant’s costs.
Stormy Daniels sued Donald Trump for defamation, after he said that her claims about him were a “total con job.” A judge threw out the case and ordered Daniels to pay Trump $600,000 for his legal expenses.
Government attorneys are too busy to file frivolous, grandstanding motions to rack up billable hours. Keep your lawsuit simple, don’t waste the defendant’s time, and don’t worry about a judge ordering you to pay for the defendant’s legal expenses.
Legal Research
Start your case by researching the laws relevant to your grievance. You must research the laws thoroughly and completely, otherwise the judge will dismiss your case.
My Alien Fiancée
Let’s jump right in and research a case.
My fiancée, who lives in Cuba, and I had a visa interview scheduled for January 2, 2020. Her grandmother, whom she lives with and is her grandmother’s primary caregiver, developed transient ischemia, which is a series of strokes. She was expected to live no more than two weeks. We cancelled the interview and intended to reschedule.
Her grandmother didn’t die. The embassy shut down and countries closed their borders. We waited until we were both vaccinated and I then immediately contacted the embassy to schedule our interview.
I argued but the consular officer could do nothing. I contacted my congressman but his staff couldn’t help. I wrote to the director of the Citizenship and Immigration Service (USCIS) and got back a form letter saying there was nothing the director could do.
We started over with a new visa application. Due to the backlog from the pandemic, what should have taken six months has taken two years. It’s now been five years since we applied for a visa and she’s still in Cuba.
Google Search
I started with a Google search on the phrase termination of K-1 visa petition.
The top hit was to 9 FAM 504.13 Termination of Immigrant Visa Registration. This is the Department of State’s Foreign Affairs Manual (FAM).
This may look like a string of letters and numbers but it’s the key that unlocks the federal code. It’s telling me to look at two sections of the Immigration and Nationality Act (INA) and gives me these sections’ locations in the United States Code (USC).
This search result also tells me to look at the Code of Federal Regulations (CFR). It’s telling me to look at three regulations.
After that, 9 FAM 504.13–2 is twelve pages of policies and procedures for agency staff to terminate immigrant visa registrations.
Statutes, Regulations, Policies, Procedures, and Public Documents
Statutes, also called acts, are laws passed by Congress and signed by the President. Statutes are collected into the United States Code (USC). The United States Code can be found on the website of the U.S. House of Representatives. Think of the United States Code as carved into stone somewhere. These are the top drawer, gold standard laws.
Regulations are laws written by agencies created by Congress, such as the Customs and Immigration Service (USCIS). Regulations are collected in the Code of Federal Regulations (CFR). Regulations are the second-tier federal laws.
Federal agencies also create manuals (policies) and handbooks (procedures) for agency officers and employees. Policies and procedures are the third-tier federal laws.
There’s also a fourth tier of federal laws. These are documents issued to the public. The National Marine Fisheries Service, within the Department of Commerce, might issue a document to commercial salmon fisherman in Alaska.
Generally, statutes are short, just a sentence or two, and broadly written. Regulations may expand a statute into a few paragraphs. Policies and procedures then expand a regulation into a dozen pages of specific instructions to agency staff.
Documents issued to the public typically narrow a statute, regulation, policy, or procedure or apply it specifically to a situation. For example, a Department of Commerce regulation might allow the agency to set a date for the start of the Alaskan commercial salmon fishing season. An agency document might specify that, this year, commercial fishermen can fish for Chinook salmon with gillnets in Prince William Sound from May 15 to June 30.
Statutes
Now we’ll look at the statutes listed in 9 FAM 504.13–1. Go to the U.S. House of Representatives United States Code (USC) and search 8 USC 1153(g) and 8 USC 1201(g). The latter code isn’t relevant to my grievance. The former is directly relevant:
There’s the statute relevant to my case! The first part of that sentence says that the agency was right to terminate our visa application after one year of inactivity. Or not — we applied for her visa, but then the embassy closed due to the pandemic. This issue will need to be investigated further in the policies and procedures manual.
The second part of the sentence is clear. I communicated with the embassy and with the USCIS asking for our visa application to be reinstated, and I said that our inactivity was beyond our control, due to the pandemic. It’s clear, to me, to the agency did not comply with this law.
Regulations
Let’s look up the regulations. 9 FAM 504.13 told me to look at three regulations:
- 8 CFR 205(a)(1)
- 22 CFR 42.43
- 22 CFR 42.83
Looking in the Code of Federal Regulations, 8 CFR 205(a)(1) and 22 CFR 42.43 aren’t relevant to my grievance.
22 CFR 42.83 is directly relevant to my grievance. This regulation restates the statute and adds an interpretation of “circumstances beyond the alien’s control”:
The pandemic qualifies as “an illness…preventing the alien from traveling.” Cuba did not allow citizens to leave the island until they were vaccinated.
Policies and Procedures
Going back to 9 FAM 504.13, what follows is twelve pages of procedures for agency staff to terminate immigrant visa registrations. I’m won’t bore you with these procedures, but I can say that every page is relevant to my case.
I’ve now found a statute, a regulation, and twelve pages of agency procedures to support my case. That’s a super brief introduction to legal research.
Chevron Deference
Until recently, when a law was ambiguous or open to interpretation, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., issued in 1984, a.k.a., Chevron deference, allowed agency officials discretion to decide how to interpret the law. I.e., if your interpretation was different from the agency’s interpretation, you’d lose your case.
The Supreme Court is re-examining Chevron deference. Changes are expected for this rule.
How To Reference Laws
Federal statute references have four parts:
- The title number.
- The acronym for the code, either for the United States Code (USC) or the Code of Federal Regulations (CFR).
- The section symbol § (option-6 on my MacBook) followed by the section number and, as needed, paragraph letters and numbers.
- The year of the code. This is optional if you’re citing current code.
For example, my USCIS case references 22 CFR § 42.43 (b) (2).
In your Jurisdiction section, cite laws by their name or title (“Immigration and Nationality Act of 1965”), the code (“22 CFR § 42.43 (b) (2)”), and include a web link. Don’t make the judge use Google to find the statute or regulation. You want to judge to read the law, not to listen to the defense counsel explaining the law.
Researching Case Law
Case law, also called common law, is where judges decide on interpretations of laws that are unclear or open to interpretation. Judges also decide on edge cases. You may also hear the phrase stare decisis (pronounced like “starry”), meaning “to stand by things decided” or that judges should follow previous interpretations of laws by other judges.
If your case is blackletter law (a clear violation of a well-understood law), you may not need to cite case law.
In Chapter One I said that you’ll need to hire an attorney to do case law. I meant that if you want a judge to decide on your novel interpretation or new legal theory, you should hire an attorney. This chapter is about researching case law. You don’t need an attorney to research case law.
If the counsel for the defense cites case law in a motion, they will provide the cases to you. You won’t have to go to a law school library to look up cases.
Exhaust All Remedies
You must “exhaust all remedies” before you file a lawsuit. If not, the judge will dismiss your case.
Find Your People
In this age of social media, you can find people who have experienced what you’ve experienced. Whether they have good advice for you is another question.
I have a lawsuit pending against the National Science Foundation. I saw a pattern with my Small Business Innovation Research (SBIR) grant applications that reviewers who gave low marks appeared to have not read my proposal beyond the first paragraph, or cited non-existent rules when rejecting my proposals, or wrote comments that belied ignorance of my field.
I remembered that the solicitation (a document written by the agency for scientists applying for grants, i.e., a fourth-tier law) had a sentence about reviewer expertise:
All proposals are carefully reviewed by…three to ten other persons… who are experts in the particular fields represented by the proposal.
I found similar wording in the agency’s Proposal and Award Policies and Procedures Guide (PAPPG, Title 45 of the CFR, Part 600).
Optimally, reviewers should have:
1. Special knowledge of the science and engineering subfields involved in the proposals to be reviewed to evaluate competence, intellectual merit, and utility of the proposed activity.
I used bold formatting to show that the PAPPG gives the program directors discretion whether to follow the policy. In other words, the third-tier law gives discretion to the program directors, and the fourth-tier law takes away this discretion.
I found a Reddit forum for scientists applying for SBIR grants. I found three posts describing the same experience I’d had. I posted my experience and several people commented that “everyone knows that the reviewers are incompetent, everyone experiences this.”
Then a freelance grant writing consultant, who’d written more than three hundred grant applications and won more than ten million dollars in grants, wrote a long, well-written comment detailing, with bullet points, five deficiencies in the grant proposal review process. Her comments were so relevant to my case that I asked her to write an amicus curie (“friend of the court”) brief.
The National Science Foundation approves about four hundred SBIR grants each year. More than one thousand proposals are rejected. I searched the case law to see lawsuits filed against the National Science Foundation. I found only a handful each year, mostly from agency staff about employment issues. No one has filed a lawsuit complaining about the reviewer selection process.
There must be hundreds of scientists each year who experienced what I experienced. Why hasn’t anyone else sued the agency? The answer was in the comments to my Reddit post: “Without an attorney and deep pockets you’ll never win a lawsuit against the government.”
Set Up an Exemplary Case
In some situations, you may be able to take some time and set up a case that clearly illustrates that agency actions were not compliant with the law.
In my National Science Foundation case, the agency has an alternative method for selecting reviewers. Instead of the agency selecting reviewers from its database, applicants can suggest reviewers. I’d discussed this with a program director when I was writing my first application and he’d said that the program directors rarely use suggested reviewers. I’d put down one or two names on the “Suggested Reviewers” page, and they hadn’t been consulted.
For my fifth proposal I wrote a lengthy and detailed “Suggested Reviewers” page. I listed several federal agencies where experts in the particular fields of my proposal could be found. I gave the name and contact info for an administrator who could find a qualified reviewer.
I also listed a company that I hoped would be my first customer. Again, I gave the name and contact info for an administrator at the company. I wrote a few sentences saying that, as the founder of a small startup, I’d had difficulty getting decision-makers at this company to respond to me, but that a call from the National Science Foundation might open doors. Even if my proposal were rejected by the agency, that call might get me a customer.
Proposal #5 was rejected. In my lawsuit I contended that the agency had two available review processes, one of which was in compliance with the law and the other was not, and that the program directors intentionally chose the review process that was not in compliance with the law. The compliant review process would cost them nothing and demand no more time or effort than the non-compliant review process.
An exemplary case may not be possible in your situation. But if you can, take the time to set up an exemplary case. Even if this delays your lawsuit by a year, it’ll make the lawsuit easier. Maybe the agency will settle, saving you a year of litigation.
Ombudsman
Ombudsmen are government employees who work to resolve disputes between the public and a government agency. You don’t need an attorney and you don’t need to know anything about the law. You just explain what happened.
Some government agencies have an Office of Ombudsman. If not, your Congressman’s office has staff that will act as an ombudsman.
Many state and local governments have an Ombudsman.
Agency Processes
Some federal agencies have a grievance process or administrative process. If so, you must go through the agency’s process before you file a lawsuit.
For example, if you believe that your employer discriminated against you under Title VII of the Civil Rights Act, you must file your complaint first with the U.S. Equal Employment Opportunity Commission (EEOC).
Freedom of Information Act (FOIA)
Proving your case often depends on “inside information,” such as government documents. Before you sue, file a Freedom of Information Act (FOIA) request. FOIA requests are free and easy. Most requests are filled in three or four months.
Don’t assume that the defendant will give you documents in discovery. The Administrative Procedures Act (APA) doesn’t have discovery. If the defendant doesn’t want to give you a document, they may ask the judge to dismiss your case on the grounds that you didn’t file an FOIA request.
Office of Inspector General
Many federal agencies have an Office of Inspector General (OIG). An OIG often has a “hotline” web form or telephone number for reporting waste, fraud, inefficiency, and unlawful conduct.
There isn’t one OIG for the United States, rather, each agency is associated with an OIG. These offices are independent of their agency but work closely with the agency.
Before you contact an OIG, look for a report, often semi-annual, to Congress from the OIG. This will tell you what the OIG actually does, which can be underwhelming. Some OIG appear to only investigate complaints from agency employees about employment issues.
Administrative Agency Hearings
Many disputes with governments are settled in an administrative agency hearing, not a trial. Examples include unemployment benefits, Social Security benefits, driver’s license issues, and tax issues.
Why Represent Yourself?
Your attorney cousin isn’t going to help you sue the government. Few attorneys specialize in federal question jurisdiction. You’re unlikely to find a local law firm with a federal jurisdiction practice, unless you live in Washington, D.C. Such law firms work with large corporate clients and bill $900/hour or more. A lawsuit will cost hundreds of thousands of dollars, if not millions.
Why Pro Se?
Pro se means “for himself” in Latin. It means that a person represents themself in a court case, without being represented by an attorney.
A reason to represent yourself is that some attorneys will file needless or frivolous motions to increase billable hours.
Another reason to represent yourself is that some attorneys give bad advice. I’ve twice gotten calls from competitors whose attorneys gave them bad advice, costing these small businesses hundreds of thousands of dollars.
The Pareto principle says that, if you know 20% of what an expert knows, you can do 80% of the expert’s job. Every business manager should know the basics of business law. And everyone should know how to look up laws.
When Not to Represent Yourself
Chapter Two was about legal research, or finding the laws relevant to your case. If you find clear non-compliance with well-understood laws, a.k.a. blackletter law, filing pro se may make sense. But if, in your case, the laws are unclear or open to interpretation, or if the agency actions may or may not have been compliant with the laws, hiring an attorney may be necessary.
The hard part of a pro se lawsuit isn’t writing the “boilerplate” or following court procedures. The Clerk of the Court will help you with the latter. The hard part is finding and understanding the laws. An attorney who knows the laws, including case law, will be able to work quickly and, more importantly, accurately. If you don’t get the laws right, the judge will dismiss your case.
Court Guides for Pro Se Plaintiffs
Many courts have a free downloadable PDF guide for pro se plaintiffs. Go to your court’s Clerk of the Court website. Look for a pro se area. The guide should be there, along with forms for pro se plaintiffs.
The guides I’ve seen for U.S. District Courts are only diversity jurisdiction cases. U.S. District Courts handle two jurisdictions:
- Diversity jurisdiction is someone suing someone else who is in another state, when the claims are more than $75,000. The plaintiff and the defendant can be an individual, a business, or a state or local government, but not the federal government.
- Federal question jurisdiction is someone suing someone under federal laws. That “someone” can be the federal government. Federal agencies are not residents of any state so diversity jurisdiction doesn’t apply.
Federal question jurisdiction is different from diversity jurisdiction in many ways. This book is about federal question jurisdiction. Do not rely on a Clerk of the Court guide to diversity jurisdiction when writing your federal question jurisdiction case.
UpWork.com
I use UpWork.com to hire freelancers for digital marketing, academic editing, etc. You can hire legal researchers and writers for under $100/hour. Some have JD degrees and are members of the bar.
Free Legal Clinics
Law schools offer free legal clinics. From what I’ve seen, you can only apply once a year, usually in September when the school year starts. The law school then selects cases for their students to work on.
Some non-profits also offer free legal clinics. Call the Clerk of the Court or look at their webpage, for a free legal clinics in your area. These are usually good for landlord-tenant disputes, employee-employer disputes, family law, or other common legal issues. I doubt that anyone at a free legal clinic has experience with federal question jurisdiction.
Nolo Press
Nolo Press has excellent self-help legal guides. Your local library’s reference desk likely has a shelf of Nolo Press books. Nolo Press doesn’t have a guide to federal question jurisdiction.
Facebook and Reddit Groups
Several Facebook and Reddit groups allow users to post legal questions or look for attorneys. These groups may be good if you have a dispute with your landlord but no one in these groups knows anything about federal question jurisdiction. When I posted a question I was attacked by people saying that a pro se individual can never win a lawsuit against the federal government.
Who Files What Pro Se
In U.S. District Court, about 25% of cases are filed pro se. Of these, 75% are a prisoner complaints.
The most common civil rights cases are color of law, i.e., unlawful actions by law enforcement officers. Examples include deprivation of medical care, deprivation of the right to vote, and discrimination.
In other words, about 85% of pro se U.S. District Court cases are from prisoners or people who were arrested.
Most other pro se cases are diversity jurisdiction, i.e., don’t involve the federal government. Of the pro se cases against the federal government, most cases are about Social Security, taxes, and immigration.
What I’m not seeing is cases like my lawsuit against the National Science Foundation, in which an American sues a federal agency (other than the Social Security Administration, the Internal Revenue Service, or the Citizenship & Immigration Service) pro se. Are Americans universally content with the services and actions of the federal government? Does no American (other than me) have a grievance against a federal agency? Or is something stopping Americans from suing federal agencies?
Statutes That Enable Suing the Federal Government
In addition to finding the laws that apply to your case, you’ll also need to cite an enabling statute that enables suing the federal government.
The United States may not be sued unless federal legislation specifically authorizes the suit. The sovereign immunity of the U.S. government is firmly established.
If you don’t correctly cite an enabling statute the judge will dismiss your case. Luckily, there are only three enabling statutes for federal question jurisdiction.
- The Administrative Procedures Act (APA, 5 U.S.C. § 555) allows judges to compel federal agencies to do something or to not do something. This called injunctive relief. The APA does not authorize money damages as a remedy. Discovery is not available in APA cases. Jury trials are not permitted. APA cases are heard in U.S. District Court.
- The Tucker Act (28 U.S.C. § 1491) is for breach of contract. Money damages over $10,000 are permitted. Limited injunctive relief has recently been permitted. A six-year statute of limitations applies. The Tucker Act covers explicit contracts (a written contract that both parties signed) and implicit contracts. Discovery is available in Tucker cases. Jury trials are not permitted. Tucker Act cases are heard in the Court of Federal Claims.
- The Federal Tort Claims Act (FTCA, 28 U.S.C. Part VI, Chapter 171 and 28 U.S.C. § 1346) covers wrongful acts or infringement of rights committed by employees of federal agencies. The agency is the defendant, not the employees. The FTCA permits money damages as a remedy. Claims must be filed within two years of the events. Interest isn’t allowed. Torts are mostly personal injury cases. Jury trials are not permitted. The Court of Federal Claims hears FTCA cases.
There’s also a “Little Tucker Act” for U.S. District Courts to hear cases in which monetary damages are under $10,000. Jury trials are not permitted.
You may have to file two cases in two courts. You might file under the APA asking the judge to order an agency to do something or to not do something. Then you file under the Tucker Act for monetary damages.
Some Government Corporations lack sovereign immunity. The most frequently sued of these is the Postal Service. Others include the Federal Deposit Insurance Corporation, the Pension Benefit Guaranty Corporation, the Export-Import Bank, and the Tennessee Valley Authority. These are corporate entities separate and distinct from the federal government.
To dig deeper into the statutes that enable us to sue federal agencies, download An Introduction to Judicial Review of Federal Agency Action, by Jared P. Cole, published by the Congressional Research Service. It’s 28 pages and it’s free.
What Is a Contract?
The Tucker Act is for contracts that are either express or implied in fact, not for contracts that are implied in law.
For an implied-in-fact contract, there must be an offer, an acceptance of the offer, mutual agreement, and consideration. The terms and execution of the agreement will be evidenced by the behavior of the parties involved. For an implied-in-law contract, circumstances form the contract, rather than intent.
This can be a key distinction if you’re suing a federal agency for money damages. If you didn’t sign an explicit (written) contract with the agency, you’ll need to show in your complaint that the agency made an offer, you accepted the offer, there was mutual agreement, and you provided consideration (something of value) to the agency. For example,
- Agency’s offer: The National Science Foundation published a grant solicitation for scientists to apply for $275,000 grants.
- Plaintiff accepted offer: I downloaded the solicitation and read that applying for a grant is a two-step process. First, I had to send in a 3,000 word “Project Pitch.”
- Mutual agreement between agency and plaintiff: An NSF Program Director accepted my Project Pitch, with an email saying that my scientific research was appropriate for the NSF.
- Plaintiff’s consideration: I spent about one hundred hours writing my proposal, plus I paid a freelance grant writing consultant $1000 to edit my proposal, before submitting my proposal to the agency.
This is an implied-in-fact contract. Both parties intended to work together, to do something.
In an implied-in-law contract, or quasi-contract, neither party intended to work together, but circumstances put them together, one party (or both parties) worked, and one party benefitted from the other’s work. You can’t sue the government for an implied-in-law contract.
What is Discovery?
Many, if not most, lawsuits involve documents or other information produced by the defendant. The plaintiff needs this evidence to prove their lawsuit. Most jurisdictions allow each party to request evidentiary documents from the other side under discovery.
Collecting evidence to prove your claims is likely to be how you spend the bulk of your time on your case.
- The Tucker Act allows discovery.
- The APA doesn’t allow discovery.
- The FTCA allows discovery in some cases, depending on when the claimant knew or should have known that an injury was caused by negligence.
Before you file your lawsuit, file a Freedom of Information Act (FOIA) request for your documents. FOIA requests are cheap and easy and should take three or four months or less.
ChatGPT
If you get stuck writing your Jurisdiction section, try ChatGPT. Prompt it with something like
What statutes should I cite for a federal question jurisdiction lawsuit against the National Aardvark Agency?
or
Write a Jurisdiction section for a federal question jurisdiction lawsuit against the National Aardvark Agency.
Then check that the statutes cited are real, not hallucinations!
Several startups have announced ChatGPT services trained on legal documents.
Federal Court Rules
You must also follow federal court rules.
- Federal Rules of Civil Procedure (“FRCP” or “Fed. R. Civ. P.”).
- Federal Rules of Evidence (“FRE” or “Fed. R. Evid.”).
- District Court’s Local Rules. Find these on the Clerk of the Court’s website.
- District Court’s Electronic Case Filing (“ECF”) Administrative Procedures. Here in Colorado, pro se plaintiffs aren’t allowed to use the ECF.
- Judicial Practice Standards: Each judge can make rules that apply only in their cases, such as the maximum number of words in a motion, the font and line spacing, etc. Find these on the Clerk of the Court’s website.
- Forms approved for use in your District. Get the forms at the Clerk of the Court’s website.
If your address changes, tell the Clerk of the Court within five days. If you don’t, the court could fine you or dismiss your case.
If you follow your Clerk of the Court’s guide for pro se plaintiffs, and Nolo Press’s Represent Yourself in Court, and call the Clerk when you have a question, you likely won’t need to read the Rules of Civil Procedure or the Rules of Evidence. But if you have a question about which court is for which type of lawsuit, what documents must be filed, time limits, discovery, enforcing a judgment, or appealing a judgment, look in the Rules of Civil Procedure or the Rules of Evidence.
If you’re filing a lawsuit against your state government, each state has its own rules of evidence.
Drafting the Complaint
The complaint is the document that the plaintiff writes in a lawsuit.
A. PLAINTIFF INFORMATION
Your name and contact info.
B. DEFENDANT INFORMATION
The agency you’re suing, their address, telephone number, etc.
C. JURISDICTION
Here’s where you put in the relevant laws you found in your legal research.
D. STATEMENT OF CLAIMS
This is the plaintiff’s side of the story.
Write your claim(s) using the I.R.A.C. Method:
- Issue
- Rule
- Application or Analysis
- Conclusion
The issue is the legal problem or question. It is what is in controversy. It is what you say and the defendant says the opposite. Start with the phrase “the issue is whether…” Then state the legal conclusion you wish the court to reach.
In federal question jurisdiction, the legal conclusion is usually that an agency action was not compliant with statutes, regulations, policies, or procedures. Then connect to the relevant facts (your story).
The issue is whether the National Aardvark Agency was compliant with 99 CFR § 9999 when it drafted the plaintiff’s dear pet aardvark, Norbert, for a White House mission.
The rule is the laws or legal rules that apply to the legal problem(s), e.g., the statute, regulation, policy, or procedure.
99 CFR § 9999 allows the National Aardvark Agency to draft aardvarks in times of national crisis.
The analysis is the longest and most important section. Tell your story (the specific circumstances of the case). Present evidence to support your argument, i.e., draw the links from your story to the laws or to a previous case (stare decisis). Use the words because, as, and since.
When an ant and termite infestation was discovered in the East Wing of the White House, the National Aardvark Agency sought an aardvark to patrol the East Wing at night because aardvarks are nocturnal and eat ants and termites. Norbert was seized by the agency as the plaintiff and her beloved pet were on their nightly walk along Pennsylvania Avenue. However, the seizure was unlawful since an ant and termite infestation is not a national crisis.
Your analysis must present factual allegations, not “naked assertations.”
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
In the conclusion, describe what the judge should decide, based on the information provided above. In my NSF case, the conclusion is:
Plaintiff’s SBIR proposal #1938503 was submitted to the agency 06/13/2019 and declined 10/18/2019. Agency staff assigned unqualified reviewers who lacked expertise in the particular fields of the proposal, an action not in compliance with agency policies, procedures, and solicitations.
It is essential that your conclusion describe a final agency action. Without a final agency action, the judge will dismiss your case. The Supreme Court, in Bennett v. Spear, 520 U.S. 154, 177–78 (1997) made this test:
As a general matter, two conditions must be satisfied for an agency action to be “final”: First, the action must mark the “consummation” of the agency’s decision-making process — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.”
Looking again at the conclusion of my NSF case claim, the first sentence described the “consummation” of the agency’s decision-making process:
Plaintiff’s SBIR proposal #1938503 was submitted to the agency 06/13/2019 and declined 10/18/2019.
The second sentence describes the action from which “legal consequences will flow”:
Agency staff assigned unqualified reviewers who lacked expertise in the particular fields of the proposal, an action not in compliance with agency policies, procedures, and solicitations.
Write as many claims as you need.
Harm Caused by Defendant
Make a new section, between the Statement of Claims and the Request for Relief. Call this section “Harm Caused by Defendant.”
Don’t pull your punches here. State clearly how you’ve suffered.
Request for Relief
This is what you’re asking the court to do.
E. REQUEST FOR RELIEF
If you’re seeking injunctive relief under the APA in U.S. District Court, ask the court to order the federal agency to do something, or to not do something.
If you’re seeking monetary damages under the Tucker Act in the Court of Federal Claims, list how much money you’ve lost.
Include interest (unless you’re filing under the Federal Tort Claims Act). Make a spreadsheet. If you’re not good at math, hire someone on Upwork to make a spreadsheet for you. Set the interest rate at 10% (what the IRS charges), then divide the interest rate by 365, then calculate the number of days from the incident to the present, then calculate the compounded interest. Check your work by calculating simple interest.
My book includes a spreadsheet with formulas for calculating compound interest from multiple sources and date.
F. PLAINTIFF’S SIGNATURE
There should be a boilerplate paragraph to copy, and then sign and date the document.
File and Serve Your Complaint
The pro se guide from your Clerk of the Court will tell you where to file your complaint, and what documents must accompany your complaint. There’s likely a Civil Cover Sheet to fill out, and a filing fee of a few hundred dollars. If you have a question, call the Clerk of the Court.
If you’re broke (like me), you can fill out an In Forma Pauperis request. If you provide evidence that you are low income, the court will waive the fees. You may also get extra services, such as the Clerk of the Court serving your documents to the defendant (more on that, below!).
Serve Your Lawsuit to the Defendant
After you receive a letter back from the Clerk of the Court acknowledging receipt of your documents, then you serve the documents to the defendants.
Don’t be in a hurry to serve your lawsuit. Wait to see if the Clerk of the Court or a judge finds a mistake. In some situations, federal law or local court laws require that a judge do an initial review of pro se complaints. The defendant isn’t going to respond to your lawsuit for sixty days, they can wait a week or two to get your documents.
Here in Colorado, the Clerk of the Court mails pro se clients a letter with an email printed out. The letter has a 200-digit cipher as proof that they received your documents. Presumably, attorneys using the ECF get emailed this. Pro se plaintiffs are treated sort of like the Flintstones. If you get a letter from the Clerk of the Court with a 200-digit cipher and a few baffling words, everything is good.
When you receive this acknowledgement from the Clerk of the Court, then you serve your documents to the defendants. The rules for serving a federal agency are Federal Civil Rule 4(i) and (j). Section (i) says that you must serve three defendants:
- The United States Attorney for your District. There are 94 districts (see map, above). Your district might be for your entire state, or for part of your state. This is the important address. All motions, responses, etc. will go through that office. The only person you will have contact with for the defense will be an attorney in that office.
- The Attorney General of the United States:
Attorney General of the United States
950 Pennsylvania Avenue NW
Washington, DC 20530
- The defendant agency. Find the address for the Office of the General Counsel at the agency. This is the only time you will contact the defendant.
Section (j) is for serving a foreign, state, or local government.
Print three sets of documents. Go to the Post Office, chat with the old people in line buying stamps, and send your documents via Certified Mail. Ignore instructions telling you to use Registered Mail. Certified Mail is for documents, Registered Mail is for valuables (and costs more).
You might see something about “Waiver of Service” in the Court’s PDF guide. Ignore that, it’s only for diversity jurisdiction.
If you filed an In Forma Pauperis request, the Clerk of the Court might tell you that they will serve your papers for you. That sounds great! But go to the Post Office and mail out the three sets of documents anyway. In my case, the Clerk of the Court emailed my documents to the U.S. District Court. Email is allowed only if the plaintiff is a prisoner. The counsel for the defense asked the judge to dismiss my case for improper service. Getting an extra copy of your lawsuit won’t hurt the defendants.
Response From the Defendant or Motion to Dismiss
Sixty days after the defendants were served, the counsel for the defense will file either a Response or a Motion to Dismiss. A Response is the defendant’s side of the story. A Motion to Dismiss is a list of procedural mistakes you made in your complaint.
The good part of a Motion to Dismiss is that the counsel for the defense will tell you exactly what mistakes you made. You can research these and can figure out how to fix your mistakes.
You then have twenty-one days to send in a Response to Motion to Dismiss.
When you write your Response, find your judge’s Practice Standard. This will give you a word limit, margins, spacing, fonts, etc. After your signature write something like this, with the word count:
I hereby certify that the foregoing pleading complies with the type-volume limitation (1,350/2,700 words) set forth in Judge Dredd’s Practice Standard III(A)(1).
Amended Complaint
The great part of a Motion to Dismiss is that you get to write an Amended Complaint. You get to fix your mistakes, starting over, at no cost, without asking a judge’s permission. A free do-over!
A few caveats about an Amended Complaint.
Use Microsoft Word’s Tools > Track Changes > Compare Documents to create a redline that shows the changes you made between the original and amended complaints. This is easy. Submit both the Amended Complaint and the redline.
You’ll need to file a Plaintiff’s Motion for Leave to File Amended Complaint. Near the top of the first page put something like this:
PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
Pursuant to Federal Rules of Civil Procedure 15(b), the plaintiff hereby submits this Motion for Leave to File Amended Complaint.
Plaintiff filed the original complaint on October 31, 2023.
Counsel for the defendant filed a Motion to Dismiss on January 23, 2024.
The plaintiff filed this Motion on February 12, 2024.
You’re also required to confer with the counsel for the defense. That means talk to the defense counsel. Email them and ask for a telephone call or email, as they prefer. After you have conferred, put a Certificate of Conferral below the Plaintiff’s Motion for Leave To File Amended Complaint.
CERTIFICATE OF CONFERRAL
The plaintiff has conferred with the counsel for the defense, which does not oppose this Motion.
Be nice to the counsel for the defense. No matter what the federal agency did to you or how much you hate them, the counsel for the defense doesn’t work for the federal agency. The defense counsel works for the United States Attorney’s Office for your district. They live in your state. Their job is to catch the mistakes you made writing your complaint. The counsel for the defense isn’t going to trick you or anything. They’ll point out your mistakes and you’ll fix them.
“You’ll Never Win!”
People have told me that there’s no chance of a pro se plaintiff winning a lawsuit against a federal agency. I don’t know if that’s true, but I’m certain that a plaintiff who doesn’t file a lawsuit isn’t going to win.
Buy my book How To Sue the Government on Amazon.