If the US federal government is sued for not abiding by it own laws, can it then be sued for the legal expenses due to the lawsuit? In US citizenship applications it's common for an application to be processed beyond the time frame set by the federal law. In such cases, the applicant may file a lawsuit with a federal court, requesting the court to issue and enforce a writ of mandamus in order to compel the federal government to process the application within the time frame set by the federal law. Does the applicant have the right then to sue the federal government for his legal expenses? After all, it's the government's dereliction that caused him to sue the government. Otherwise, what would prevent the government from always abusing its power? It may decide to process applications as slow as possible, and only process an application in a timely manner if a lawsuit is filed against the government (at the expense of the applicant); but without any further financial consequences to the government.
Short Answer No. The immigration applicant is generally not entitled to his or her attorney fees in this situation, even though the government is violating one of its own laws. Long Answer The Black Letter Law Question The Right To Fees Depends On The Legal Theory Advanced A consistent answer doesn't exist at the level of generality of the title question. Some of the statutes that relate to a violation of the law by a government official include an attorney fees remedy to a prevailing plaintiff, while others do not. Violations of constitutional rights enforced under 42 U.S.C. § 1983 entitle a prevailing plaintiff to an attorney fees award. But the immigration law is a statutory requirement not a constitutional one and there is no generalized constitutional right to have the U.S. government comply with every provision of every enacted statute. Indeed, the general rule is that enforcement of statutory rights against private individuals is discretionary and non-justiciable. A writ of mandamus filed to compel the federal government to take action as it is required to do under the immigration laws would usually arise under the All Writs Act, 28 U.S.C. § 1651, which does not generally entitle the prevailing plaintiff to attorneys' fees, and that would probably be the case in an All Writs Act petition for a writ of mandamus filed in relation to the timely processing of an immigration application. But the All Writs Act is basically a statutory touchstone through which the door is opened to the entire pre-Revolutionary War English common law of writ practice as modified in a common law manner through case law by the American federal courts, and there are probably some exceptions in fact patterns beyond the scope of the question. This said, I am not an expert in immigration law and it is possible that there are administrative law remedies under either the federal Administrative Procedures Act (APA) or the Immigration and Nationality Act (INA) which might provide a different solution to the same problem. Article III Court Litigation Is The Rare Exception In Immigration Cases Keep in mind that most immigration law matters are in the exclusive original jurisdiction of the immigration courts, which are not Article III courts, and are instead staffed by administrative law judges operating according to immigration court procedures, which must then be appealed to the Board of Immigration Appeals, and only after those remedies are exhausted may most immigration cases be brought before an Article III court which in that case is the U.S. Court of Appeals for the circuit in which the case arose within the immigration court system. And, appellate review of BIA decisions is quite limited. Perhaps someone more familiar with the federal APA and INA would know if there is any right to attorneys' fees under those acts, although I suspect that the answer is that there is not. Indeed, the fact that Article III litigation is such a rare exception to the general rule is one of the reasons that this problem has not been viewed as a crisis that is critical to fix. It is easier to find alternative funding to litigate cases that come up only dozens of times a year than it is to do so for issues in cases that are routine and pervasive. Exceptions Apply Where There Is Wrongful Government Litigation Conduct Also, while attorney fees are not recoverable as a matter of course in actions arising under the All Writs Act where there is not a common law right to attorney fees in a particular fact pattern, attorney fee awards may still be entered in an action under the All Writs Act, or under any other cause of action in federal court, as a sanction for wrongful litigation conduct. There are three kinds of sanctions for wrongful litigation conduct that commonly arise: Rule 11 If a party files a legal document in a federal court case which is frivolous (i.e. lacks any colorable legal basis), groundless (i.e. lacks any factual basis), or vexatious (i.e. is made for the purposes of harassing a party or delaying the case for no legitimate purpose even if it is not otherwise frivolous or groundless), then an attorney fees award may be made as a sanction proportionate to the fees incurred as a result of the wrongful litigation conduct under Federal Rule of Civil Procedure 11. Discovery Sanctions If a party fails to obey the rules governing pre-trial disclosure of information in &quot;discovery&quot; forcing the other party to enforce those obligations in motion practice prior to trial, one of the remedies that the court may (and often does) provide for this wrongful conduct is to award attorney fees to the party that requested the information and did not receive the response that party was entitled to under Federal Rule of Civil Procedure 37. Contempt of Court If a party or someone else with knowledge of the court order and some relationship to a party fails to obey a court order, or if someone who is present in the courtroom engages in conduct disrespectful to the court in the court's actual presence, party who engaged in this misconduct may be held in contempt of court. Contempt of court may be criminal, simply punishing the wrongdoer for misconduct in the same way that one might for a misdemeanor violation, or civil, imposing incarceration or fines or other remedies until the wrongdoer complies with a court order. When someone is held in contempt of court, the sanction for doing so frequently involves an award of attorneys fees incurred as a result of the wrongful action by a party to the case against the wrongdoer. Of these three options, the third, contempt of court, has the most bite as a practical matter. If a judge orders the immigration agency to meet a deadline by a certain time and it fails to do so, which isn't an uncommon result when it has already failed to do so despite receiving formal complaints about the delays, it is very likely that the sanction for failing to meet the court ordered deadline to comply will result in an attorney fees sanction against the government. Does This Rule Encourage Misbehavior? what would prevent the government from always abusing its power? It may decide to process applications as slow as possible, and only process an application in a timely manner if a lawsuit is filed against the government (at the expense of the applicant); but without any further financial consequences to the government. Sometimes Government Officials Do The Right Thing Because It's Their Job In any political and legal system, we have to count on some of the key actors to follow the law not because there are consequences for not following the law, but because their job is to uphold the law. For example, we trust judges and juries to try and rule in accordance with the facts presented to them and the relevant law in the cases they decide in court, even though both judges and juries have absolute immunity from liability for their official judicial acts. The President, and every single other federal government official, federal judge and federal administrative law judge, is likewise sworn to uphold the constitution of the United States, and the President and everyone else in the executive branch acting with authority delegated to them from the President's Executive Branch power has a duty to &quot;faithfully execute the laws&quot; of the United States. Presidential elections represent (theoretically anyway) the judgment of the American people concerning who is most able to do that job properly and to make good choices about how to exercise discretion in doing so. Also, as a practical matter, many snarls in the immigration process are handled by members of Congress in their constituent service role or through the passage of private laws, rather than by attorneys for the applicants in the Article III court, in part precisely because individual litigants can rarely afford to pay lawyers to do that. Almost every Senator and members of the House of Representatives (539 in all including non-voting delegates who still get staff), where I worked as an intern for a while, has a staff member who devotes perhaps 1/4 to 1/2 FTE to resolving cases like this one. Sometimes Delays Are Unavoidable And Not Due To Official Misconduct The wrongfulness of the delay is also mitigated by the fact that often delays are not due to any bad faith conduct on behalf of the federal government officials involved. It is not infrequently the case that it is impossible for federal government officials to do the job that Congress have given them a mandate to carry out, by the deadlines that Congress has set forth, with the funds that Congress has appropriated to them to get the job done. This is true not just in the immigration law context, but in all sorts of circumstances. The Political System's Design Naturally Disfavors Immigrants Of course, politicians and government officials often don't do everything that they are supposed to do for reasons that aren't noble or blameless. The administration in place for the last four years as of the time that this answer is written specifically campaigned on a platform of radically reducing legal immigration and largely succeeded in doing so, even though it lost many particular legal battles on that front. This wouldn't be the first time that this has happened. Immigrants, by definition, are made up of a class of people who can't vote in Presidential or Congressional elections and, as the median voter theorem would predict, their interests as non-voters fall to the bottom of the political priorities. The U.S. Legal System Is Applying Rules Designed For Different Contexts The other reason that this happens is that it evolved that way. There are a lot of good policy reasons (beyond the scope of this answer) for the American Rule that each side bears their own attorney fees in lawsuits between private parties. In a nutshell, it encourages people not to litigate minor disputes and encourages settlements that reduce the deadweight loss of transaction costs associated with litigation in lawsuits where there are substantial amounts in controversy. There are good arguments for the opposite rule as well, which is why there are many exceptions to it and why the English legal system, post-1789, ultimately ended up changing its default fee shifting rule. But when that rule was put in place, &quot;public law&quot; (i.e. lawsuits between the government and private individuals and between governments) was largely outside the jurisdiction of the common law courts that are the ancestors of the modern U.S. court system. The general rule was that you couldn't sue the government or government officials at all, and there were few exceptions and the scope of government regulation in people's lives was much smaller, although that was starting to change. Other Countries Adopt The Rule You Propose In contrast, in French law, under the First Republic, sovereign immunity from its citizens (that survived in England) was abolished, and the Republic established a separate legal system for handling public law disputes, under the supervision of the French Council of State, that has endured through the present. In the French system, copied in principle (although not every administrative detail) by essentially all other countries with a civil law legal system, once you file a public law complaint (on a form you can purchase at your neighborhood convenience store), the Council of State assigns one public law lawyer (basically a senior civil servant and not a member of the same legal professions as private law lawyers and notaries and prosecutors and judges) to represent the government in your case, and assigns another one from the same pool of government lawyers to represent its citizens in the case, in a manner similar to how barristers are assigned to serious criminal cases on a case by case basis in the British criminal justice system. There is a lot to be said for the civil law approach. Historically, it has led to government bureaucracies that are better run and treat citizens more fairly and with less corruption, relative to U.S. style systems, which is an important reason why state owned enterprises are much more popular in countries with civil law systems than in countries without them. But that simply isn't the path that U.S. law has taken, even though there are good arguments that the U.S. system is more vulnerable to being unfair. Various Workarounds And Limitations Prevent Worst Case Scenarios Still, because government officials do try to follow the law as best they can most of the time (especially career civil servants who implement the political appointee's policies), and because really outrageous litigation conduct by government lawyers who take unreasonable positions in public law litigation can result in judicial sanctions, the system still does provide some means for relief when the government violates the law. Finally, the fact that attorney fees aren't shifted in these cases doesn't mean that these cases aren't litigated. In some cases, the individual or their sponsor can afford to litigate the issue. In some cases, immigration attorneys litigate the issue pro bono (i.e. without charge to the client) because the issue has importance to their ability to deliver results to all their other clients or as a form of charitable giving and, in some cases, local governments fund this litigation on behalf of their non-citizen residents or non-profit advocacy groups fund this kind of litigation from private donations. For example, the City of Denver is among those local governments that has established a fund to help pay lawyers to litigate immigration issues on behalf of its residents to address the financial barriers those residents face to enforcing their legal rights under federal immigration laws. So, in an example of the Coase Theorem of economics, even when the formal legal arrangements and rules of a system are non-optimal, a free market economy tends to find workarounds that reallocate unfair burdens in a way that is sufficient to make the system as a whole function better.
State governments (and state courts, employees, etc., as part of that government) are generally immune from lawsuits for all liability. See Governmental Tort Liability : 2017 Tennessee Code : Justia. You're really not going to be able to sue the state, the court, the prosecutor or parole officer over what you see as a negligent decision, considering the individuals' previous record or freedom while on parole, and/or whether they are charged as an adult or a minor. Most any lawyer will advise you of this. You could contact a local legal aid clinic Legal Aid/Legal Services | Tennessee Bar Association for more of an explanation and explore the possibilities.
I am wondering if the government can still implement it and force people to pay even if the decision is challenged in court. Laws are not automatically put on hold because they are challenged. For an action or a law to be halted by the Court before a decision is made, the applicant would have to seek an interlocutory injunction, which are granted only if, as established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, (i) is there a serious issue to be tried, (ii) will the party seeking the injunction suffer irreparable harm if it is not granted, and (iii) does the balance of convenience favour the party seeking the injunction. The first issue is rarely a problem, especially for a controversial issue like this. I am thinking the government might be able to tax people and then refund people if the court doesn't uphold the decision instead of a court challenge being able to postpone the tax indefinitely. A quantifiable financial harm is rarely irreparable (in private law cases). However there is an important exception for Charter cases where a financial harm is assumed to be irreparable because damages are often not awarded in constitutional cases. Though in this case it might be considered reparable because the quantification of damage and the method of redress are straightforward. For the third question, the Court needs to weigh both sides' interests in the case where the injunction is granted. Even if the damage is deemed irreparable, the Court may (or may not) still find the public interest in health outweighs the financial interests of the unvaccinated.
Typically an Answer would have two parts. The first part presents the Defendant's side of the story raised in the Petition in an effort to assert that the Petition when viewed in light of the actual facts hasn't demonstrated a right to relief. The second part sets forth "affirmative defenses", most of which are procedural in nature. An affirmative defense raises some set of circumstances not discussed in the Petition that make it appropriate to deny relief even when, but for the defense, if everything in the Petition was true, this would suffice to establish grounds for relief. For example, procedural defenses might include: failure to meet a deadline, failure to give notice to the proper persons, failure to pay a filing fee, failure to include required information (such as a case number or a statement of facts or a signature) in the Petition, or lack of standing to file the Petition on behalf of the child because parental rights or legal guardianship are absent or because the person filing the Petition isn't an adult. The notion is that the Reply, in theory, should limit itself to responding to the newly raised procedural defenses stated in the Answer, or to new documents provided with the Answer, instead of trying to argue and resolve every dispute of fact or credibility issues between the Petition's version of the facts and the Answer's version of the facts. When in doubt, talk about it in the Reply. At worst, it is beyond the scope of what should be included in a Reply and can be ignored by the hearing officer as harmless. And, sometimes the hearing officer will decide that they want to know what is said even if it isn't strictly within the proper scope of a Reply. Certainly provide any documents that weren't previously provided that rebut the claims in the Answer.
No. The Fourteenth Amendment says: nor shall any state deprive any person of life, liberty, or property, without due process of law; The Supreme Court has determined that this clause incorporates much of the Bill of Rights. The logic is mildly tortured, but it's basically that "due process of law" means "due process of a law that is compatible with the fundamental rights of a free society." This logic is known as "substantive due process," because it reads in to "due process of law" requirements about what those laws can do (as opposed to procedural due process, which is about the actual procedures being used). It's pretty settled that the Bill of Rights, after the 14th Amendment, should apply to the states. There's another possible way to get there: the 14th Amendment says "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," which Justice Thomas recently thought meant that the Second Amendment applies to the states in a concurring opinion. But as of now, substantive due process is the standard logic for it. Virtually all of the Bill of Rights is incorporated against the states. There are a couple things which aren't (like juries in lawsuits, and grand juries), but the Establisment Clause is incorporated (see Everson v. Board of Education, 330 US 1).
To the extent Constitutionally permitted or as further limited by the state’s own law Constitutionality, a suit may be brought (or a prosecution launched) when the state has personal jurisdiction over the defendant. … a state court may only exert personal jurisdiction over an individual or entity with &quot;sufficient minimal contacts&quot; with the forum state such that the particular suit &quot;does not offend 'traditional notions of fair play and justice.'&quot; What constitutes sufficient &quot;minimum contacts&quot; has been delineated in numerous cases which followed the International Shoe decision. For example, in Hanson v. Denckla, the Court proclaimed the &quot;unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the nature and quality of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws.&quot; For the abortion bill, an organisation that provides funding to Texas residents probably has “minimum contacts”, an out-of-state doctor who treats all-comers probably doesn’t. For employment laws: if the employee is based and work takes place in the state, yes. There is a separate question of which state's law applies which is independent of which state's courts can hear the case. A California court can decide that it can hear a case according to Texas law for example although, in practice, if the California court felt that all of the issues were Texan, they would probably decide they lacked jurisdiction.
There are two kinds of competent authorities: courts, and government enforcement agencies (tax offices, building inspectors, etc.). A court might order X to do something if Y petitions, but X is notified of the proceeding to which they are a party, and X will (should) object to the petition on the grounds that the petitioned relief is impossible or imposes an extreme burden on them. If, having objected that it is impossible to comply the court still orders you to do the impossible, you have to appeal the ruling. Ultimately the Supreme Court may order you to squeeze blood from a stone, and there is nothing practical that you can do – you must do the impossible, or suffer the consequences. However, courts do not order people to squeeze blood from a stone. A government agency may make such a demand, with minimal opportunity for you to object. Your recourse is very similar to the case where a party petitions the court to order you to do something. A law may exist whereby an agency is authorized to &quot;order&quot; a person to act in a certain way: there may be a requirement for a hearing, or you may have to sue the agency to overrule their demand. It is possible that you can appeal agency-internally that it is impossible, or too burdensome, to comply, or you may have to make that argument in court. It is usually best to persuade the agency that they are asking the impossible, since the courts tend to defer to government agencies that issue orders, unless your case is particularly egregious. &quot;It would be inconvenient for us&quot; is generally not a viable defense. The general rule is, you must follow the law, period.
Under U.S. law, a U.S. court can assert jurisdiction sufficient to enter a binding judgment (called "long arm personal jurisdiction") if the events giving rise to the lawsuit took place in the state where the state or federal court in which the suit is brought is located. Generally speaking, modern U.S. law allows the service of the summons and complaint that gives the court jurisdiction over the defendant if the events giving rise to the suit took place in the state, to be served anywhere in the world (or even in outer space, for that matter). But, the practical reality is that serving someone with process from a U.S. court in another country would be difficult and expensive, and enforcing the judgment if you win could likewise be difficult. There are also a couple of other problems specific to small claims court: Many small claims courts do not have the full jurisdiction that the U.S. Constitution allows them to have by virtue of the statutes that authorize them and their contemplation that proceedings take place predominantly or entirely in person. It isn't uncommon for the statute authorizing a small claims court to limit its jurisdiction to defendants that live in the same county. Most small claims courts are only allowed to enter money judgments subject to some very narrow and idiosyncratic exceptions. Most small claims courts do not have jurisdiction to order specific performance of a contract to sell a car, even though they could award money damages for breaching the contract to sell the car if those money damage could be demonstrated convincingly. These barriers particular to small claims court could be solved by filing suit in another state court that has broader jurisdiction. (The federal courts would probably not have jurisdiction over this case even if there was "diversity of citizenship" between the parties because the amount in controversy would probably be less than $75,000 unless it was a very fancy car indeed to be worth that much used.) Different consideration would apply if these facts and circumstances arose outside the United States, depending upon the jurisdiction in question.