Rahinah Ibrahim v. US Dept. of Homeland Security , 912 F.3d 1147 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DR. RAHINAH IBRAHIM, an Nos. 14-16161
individual, 14-17272
Plaintiff-Appellant,
D.C. No.
v. 3:06-cv-545-
WHA
U.S. DEPARTMENT OF HOMELAND
SECURITY; TERRORIST SCREENING
CENTER; FEDERAL BUREAU OF OPINION
INVESTIGATION; CHRISTOPHER A.
WRAY, * in his official capacity as
Director of the Federal Bureau of
Investigation; KIRSTJEN NIELSEN, in
her official capacity as Secretary of
the Department of Homeland
Security; MATTHEW G. WHITAKER,
in his official capacity as Acting
Attorney General; CHARLES H.
KABLE IV, in his official capacity as
Director of the Terrorist Screening
Center; JAY S. TABB, JR., in his
official capacity as Executive
Assistant Director of the FBI’s
National Security Branch; NATIONAL
COUNTERTERRORISM CENTER;
*
Current cabinet members and other federal officials have been
substituted for their predecessors pursuant to Rule 43(c)(2) of the Federal
Rules of Appellate Procedure.
2 IBRAHIM V. DHS
RUSSELL “RUSS” TRAVERS, in his
official capacity as Director of the
National Counterterrorism Center;
DEPARTMENT OF STATE; MICHAEL R.
POMPEO, in his official capacity as
Secretary of State; UNITED STATES
OF AMERICA,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted En Banc March 20, 2018
San Francisco, California
Filed January 2, 2019
Before: Sidney R. Thomas, Chief Judge, and M. Margaret
McKeown, Kim McLane Wardlaw, William A. Fletcher,
Marsha S. Berzon, Consuelo M. Callahan, Milan D. Smith,
Jr., N. Randy Smith, Morgan Christen, Jacqueline H.
Nguyen, and Paul J. Watford, Circuit Judges.
Opinion by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Callahan
IBRAHIM V. DHS 3
SUMMARY **
Equal Access to Justice Act / Attorneys’ Fees
The en banc court reversed the district court, vacated the
award of attorneys’ fees under the Equal Access to Justice
Act (“EAJA”), and remanded with instructions to recalculate
the fees for the civil rights law firm that represented
Dr. Rahinah Ibrahim in her successful challenge to her
inclusion on the Transportation Security Administration’s
“No Fly” list.
The en banc court held that when a district court awards
complete relief on one claim, rendering it unnecessary to
reach alternative claims, the alternative claims cannot be
deemed unsuccessful for the purpose of calculating a fee
award. The en banc court rejected the post hoc “mutual
exclusivity” approach to determining whether
“unsuccessful” claims were related to successful claims and
reaffirmed that Hensley v. Eckerhart, 461 U.S. 424 (1983),
sets forth the correct standard of “relatedness” for claims
under EAJA. The en banc court reaffirmed that in evaluating
whether the government’s position is substantially justified,
the court looks at whether the government’s and the
underlying agency’s positions were justified as a whole and
not at each stage of the litigation.
Applying these standards, the en banc court held that the
various stages at issue here were all part of one litigation in
federal court where the case was never returned to an agency
for further proceedings, and, therefore, Corbin v. Apfel,
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 IBRAHIM V. DHS
149 F.3d 1051 (9th Cir. 1998) (holding that in exceedingly
complex cases, a court may appropriately determine whether
the government was substantially justified at each stage of
the litigation and make a fee award apportioned to those
separate determinations), did not apply. The en banc court
held that the district court erred in its piecemeal approach to
substantial justification, and concluded that neither the
agency’s conduct nor the government’s litigation position
was substantially justified.
The en banc court held that the district court erred in
determining that Dr. Ibrahim was entitled to reasonable fees
and expenses with respect to only her procedural due process
claim and her related substantive due process and
Administrative Procedure Act claims, and in disallowing
counsel’s reasonable fees and expenses on the unreached,
and “unrelated,” First Amendment and equal protection
claims. The en banc court held that the district court clearly
erred in holding that Dr. Ibrahim’s unreached claims were
unsuccessful. The en banc court held that all of
Dr. Ibrahim’s claim arose from a “common course of
conduct” and were therefore related under Hensley. The en
banc court further held that the district court erred in finding
that Dr. Ibrahim had only “limited” success, and concluded
that Dr. Ibrahim satisfied Hensley’s second prong that the
plaintiff achieve “a level of success that makes the hours
reasonably expended a satisfactory basis for making a fee
award.” Hensley, 461 U.S. at 434. The en banc court found
that Dr. Ibrahim achieved excellent results and was entitled
to reasonable fees consistent with that outcome.
Although generally attorneys’ fees are capped under
EAJA at $125 per hour, where the government acts in bad
faith, a court may assess fees and expenses to the extent a
party would be liable under the common law. The en banc
IBRAHIM V. DHS 5
court concluded that the district court’s ruling that the
government did not act in bad faith was in error because it
was incomplete where the district court did not consider the
“totality” of the government’s conduct, including conduct
prelitigation and during trial.
The en banc court remanded to allow the district court to
make a bad faith determination under the correct legal
standard in the first instance, and to re-determine the fee
award.
Judge Callahan, joined by Judges N.R. Smith and
Nguyen, concurred in part and dissented in part. Judge
Callahan agreed with the majority that Dr. Ibrahim was the
prevailing party, and that the test for substantial justification
is an inclusive one; and that Dr. Ibrahim’s equal protection
and First Amendment claims were sufficiently related to her
other claims such that the district court’s failure to reach
those issues did not justify the district court’s curtailment of
attorneys’ fees. Judge Callahan would hold that the majority
exceeded its role as an appellate court by determining in the
first instance that the government’s position was not
substantially justified; and dissented from the majority’s
setting aside of the district court’s finding that the defendants
did not proceed in bad faith. Judge Callahan would affirm
the district court’s limitation of Dr. Ibrahim’s attorneys’ fees
to the statutory rate set by EAJA.
6 IBRAHIM V. DHS
COUNSEL
Marwa Elzankaly (argued), Jennifer Murakami, Ruby Kazi,
Christine Peek, Elizabeth Pipkin, and James McManis,
McManis Faulkner, San Jose, California, for Plaintiff-
Appellant.
Joshua Waldman (argued) and Sharon Swingle, Appellate
Staff, Civil Division, United States Department of Justice,
Washington, D.C., for Defendants-Appellees.
Chet A. Kronenberg and JoAnne S. Jennings, Simpson
Thacher & Bartlett LLP, Los Angeles, California, for Amici
Curiae American Civil Liberties Union of California, Asian
Americans Advancing Justice-Asian Law Caucus, Asian
Americans Advancing Justice-Los Angeles, Center for
Constitutional Rights, Electronic Frontier Foundation, and
National Immigration Law Center.
IBRAHIM V. DHS 7
OPINION
WARDLAW, Circuit Judge:
This appeal arises out of Dr. Rahinah Ibrahim’s 2005
detention at the San Francisco International Airport (SFO)
while en route to Malaysia with a stopover in Hawaii for a
Stanford University conference. U.S. authorities detained
Dr. Ibrahim because her name was on the Transportation
Security Administration’s (TSA) “No Fly” list (the No Fly
list). After almost a decade of vigorous and fiercely
contested litigation against our state and federal
governments and their officials, including two appeals to our
court and a weeklong trial, Dr. Ibrahim won a complete
victory. In 2014, the federal government at last conceded
that she poses no threat to our safety or national security, has
never posed a threat to national security, and should never
have been placed on the No Fly list. Through Dr. Ibrahim’s
persistent discovery efforts, which were met with stubborn
opposition at every turn, she learned that she had been
nominated to the No Fly list and the Interagency Border
Inspection System (IBIS), which are stored within the
national Terrorist Screening Database (TSDB)—the federal
government’s centralized watchlist of known and suspected
terrorists—and which serve as a basis for selection for other
counterterrorism sub-lists. From there, a Federal Bureau of
Investigation (FBI) special agent so misread a nomination
form that he accidentally nominated Dr. Ibrahim to the No
Fly list, intending to do the opposite, as the No Fly list is
supposed to be comprised of individuals who pose a threat
to civil aviation.
But Dr. Ibrahim did not accomplish this litigation victory
on her own. Indeed, since she was finally allowed to travel
to Malaysia in 2005, the United States government has never
allowed her to return to the United States, not even to attend
8 IBRAHIM V. DHS
the trial that cleared her name. Throughout this hard-fought
litigation, the civil rights law firm McManis Faulkner has
represented her interests without pay, but with the
understanding that if it prevailed on her behalf, it could
recover reasonable attorneys’ fees and expenses, in addition
to costs, pursuant to the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412.
The firm filed a motion for an award of attorneys’ fees
and expenses, supported by documentary evidence and
declarations, which the government opposed. The motion
was met with the “compliments” of the district court and
drastic reductions in the claimed fees, by almost ninety
percent. In reducing the claimed legal fees, the district court
misapplied Commissioner, I.N.S. v. Jean, 496 U.S. 154
(1990), by taking a piecemeal approach to determining
whether the government’s position was “substantially
justified,” and so disallowing fees for particular stages of
proceedings rather than examining the record as a whole and
making a single finding. The district court further erred by
treating alternative claims or theories for the same relief Dr.
Ibrahim achieved—which the court, therefore, did not
reach—as unsuccessful, and reducing fees for work pursuing
those claims, contrary to Hensley v. Eckerhart, 461 U.S. 424
(1983). These errors were compounded by the now-
withdrawn three-judge panel decision, which misapplied the
Hensley standard for determining “relatedness,” i.e.,
whether the claims arose from a “common course of
conduct,” to wrongly conclude that because the claims in the
alternative were “mutually exclusive,” they were not related.
In point of fact, all of the legal theories pursued on behalf of
Dr. Ibrahim challenged the same and only government
action at the heart of this lawsuit: the government’s
placement of her name on the No Fly list without any basis
for doing so. Finally, our prior precedent, which we now
IBRAHIM V. DHS 9
reaffirm, requires that when a district court analyzes whether
the government acted in bad faith, it must consider the
totality of the circumstances, including both the underlying
agency action and the litigation in defense of that action.
We reheard this appeal en banc to clarify the standards
applicable to awards of attorneys’ fees under the EAJA. We
now reverse, vacate the award of attorneys’ fees, and remand
with instructions to recalculate fees consistent with this
opinion. 1
I.
A. Dr. Ibrahim
Dr. Ibrahim is a Muslim woman, scholar, wife, and
mother of four children. She lived in the United States for
thirteen years pursuing undergraduate and post-graduate
studies. Here’s what happened to Dr. Ibrahim, as the events
that ultimately excluded her from this country unraveled:
In early January 2005, Dr. Ibrahim planned to fly from
San Francisco to Hawaii and then to Los Angeles and on to
Kuala Lumpur. She intended to attend a conference in
Hawaii sponsored by Stanford University from January 3 to
January 6, at which she would present the results of her
doctoral research. She was then working toward a Ph.D. in
construction engineering and management at Stanford
University under an F-1 student visa. On January 2, 2005,
Dr. Ibrahim arrived at SFO with her daughter, Rafeah, then
fourteen. At the time, Dr. Ibrahim was still recovering from
1
For ease of reading, attached as Appendix A is a glossary of the
numerous acronyms referenced throughout this opinion.
10 IBRAHIM V. DHS
a hysterectomy performed three months earlier and required
wheelchair assistance.
When Dr. Ibrahim arrived at the United Airlines counter,
the airline staff discovered her name on the No Fly list and
called the police. Dr. Ibrahim was handcuffed and arrested.
She was escorted to a police car (while handcuffed) and
transported to a holding cell by male police officers, where
she was searched for weapons and held for approximately
two hours. Paramedics were called to administer medication
related to her surgery. No one explained to Dr. Ibrahim the
reasons for her arrest and detention.
Eventually, she was released and an aviation security
inspector with the Department of Homeland Security (DHS)
informed Dr. Ibrahim that her name had been removed from
the No Fly list. The police were satisfied that there were
insufficient grounds for making a criminal complaint against
her. Dr. Ibrahim was told that she could fly to Hawaii the
next day.
The next day she returned to SFO where an unspecified
person told her that she was again—or still—on the No Fly
list. She was nonetheless allowed to fly, but was issued an
unusual red boarding pass with the letters “SSSS,” meaning
Secondary Security Screening Selection, printed on it. Dr.
Ibrahim flew to Hawaii and presented her doctoral findings
at the Stanford conference. From there, she flew to Los
Angeles and then on to Kuala Lumpur.
Two months later, on March 10, 2005, Dr. Ibrahim was
scheduled to return to Stanford University to complete her
work on her Ph.D. and to meet with an individual who was
one of her Stanford dissertation advisors and also her friend,
Professor Boyd Paulson, who was very ill. But when she
arrived at the Kuala Lumpur International Airport, she was
IBRAHIM V. DHS 11
not permitted to board the flight to the United States. She
was told by one ticketing agent that she would have to wait
for clearance from the U.S. Embassy, and by another that a
note by her name indicated the police should be called to
arrest her. Dr. Ibrahim has not been permitted to return to
the United States to this day.
On March 24, 2005, Dr. Ibrahim submitted a Passenger
Identity Verification Form (PIVF) to TSA. Before 2007,
individuals who claimed they were denied or delayed
boarding a plane in or for, or entry to, the United States, or
claimed they were repeatedly subjected to additional
screening or inspection, could submit a PIVF to TSA. A
PIVF prompted various agencies to review whether an
individual was properly placed in the TSDB or in related
watchlist databases. 2
Next, on April 14, 2005, the U.S. Embassy in Kuala
Lumpur wrote to inform Dr. Ibrahim that the Department of
State had revoked her F-1 student visa on January 31, 2005,
which seemed to explain why she had not been allowed to
fly in March, but gave her no further information regarding
her status. The April 14 letter cited Dr. Ibrahim’s possible
ineligibility “under Section 212(a)(3)(B) of the Immigration
and Nationality Act [(INA)],” codified at 8 U.S.C
§ 1182(a)(3)(B), to explain the revocation. That section
prohibits entry into the U.S. by any person who engaged in
terrorist activity, was reasonably believed to be engaged in
or likely to be engaged in terrorist activity, or who has
incited terrorist activity, among other things. 8 U.S.C.
2
This avenue of redress was replaced in 2007 by the Travel Redress
Inquiry Program (TRIP), see 49 U.S.C. § 44926(a), which requires a
“timely and fair” process for persons wrongly delayed or prohibited from
boarding a commercial aircraft.
12 IBRAHIM V. DHS
§ 1182(a)(3)(B). However, the letter also told her that the
revocation did “not necessarily indicate that [she would be]
ineligible to receive a U.S. visa in [the] future.” Not having
heard back from TSA, Dr. Ibrahim retained McManis
Faulkner. And on January 27, 2006, she filed the underlying
action to challenge her placement on the No Fly list, as well
as the federal and state governments’ administration of the
list and their treatment of her with respect to it.
In a letter dated March 1, 2006, Dr. Ibrahim received a
response to her PIVF. That letter stated that TSA had
“conducted a review of any applicable records in
consultation with other federal agencies, as appropriate,”
and continued, “[w]here it has been determined that a
correction to records is warranted, these records have been
modified to address any delay or denial of boarding that you
may have experienced as a result of the watchlist screening
process.” The letter did not indicate Dr. Ibrahim’s status
with respect to the No Fly list or any other federal watchlist.
In 2009, Dr. Ibrahim applied for a visa to attend
proceedings in this action. The U.S. Embassy in Kuala
Lumpur interviewed her on September 29, 2009. On
December 14, 2009, a consular officer of the U.S.
Department of State sent a letter to Dr. Ibrahim notifying her
of her visa application’s denial. The consular officer wrote
the word “(Terrorist)” next to the checked box for INA
§ 212(a)(3)(B) on an accompanying form to explain why Dr.
Ibrahim was deemed inadmissible.
In September 2013, Dr. Ibrahim submitted a visa
application so that she could attend the trial in her case. She
went to a consular officer interview in October 2013. At the
interview, the consular officer asked her to provide
supplemental information via e-mail, which Dr. Ibrahim
duly provided. Trial in this action began on December 2 and
IBRAHIM V. DHS 13
ended on December 6. While she did not receive a response
to her visa application before trial, at trial, government
counsel stated that the visa had been denied. Dr. Ibrahim’s
counsel said that they had not been aware of the denial and
that Dr. Ibrahim had not been notified.
B. United States Government
While Dr. Ibrahim stood in limbo, unaware of her status
on any list and unable to return to the United States, even to
attend the trial of her own case, the government was well
aware that her placement on the No Fly list was a mistake
from the get-go. 3
Here it is helpful to understand, as much as we can on
this record, how the U.S. “government maintains and
operates a web of interlocking watchlists, all now centered
on the [TSDB],” as described in the district court’s post-trial
order. 4 The FBI, DHS, the Department of State, and other
agencies administer an organization called the Terrorist
Screening Center (TSC), which manages the TSDB. Both
the TSC and TSDB were created in response to the terrorist
attacks on September 11, 2001, in order to centralize
information about known and suspected terrorists. That
information is then exported as appropriate to various
“customer databases,” i.e., government watchlists, operated
by other agencies and government entities. In this way, “the
3
To this date, we do not know how Dr. Ibrahim was initially flagged
for potential placement in the TSDB, managed by the Terrorist Screening
Center (TSC), of which the No Fly list is a subset. There has never been
a determination, nor can we determine, whether this placement was
motivated by “race, religion, or ethnicity.”
4
None of the following information was deemed classified or
otherwise privileged before or during trial.
14 IBRAHIM V. DHS
dots could be connected.” While the TSDB does not contain
classified information, the government stores classified
“derogatory” information in a closely allied and separate
database called the Terrorist Identities Datamart
Environment (TIDE), which is operated by the National
Counterterrorism Center (NCTC) branch of the Office of the
Director of National Intelligence. These terrorist watchlists,
and others, provide information to the United States
intelligence community, a coalition of seventeen agencies
and organizations within the executive branch, and also
provide information to certain foreign governments.
Today, individuals are generally nominated to the TSDB
using a “reasonable suspicion standard,” meaning
“articulable facts which, taken together with rational
inferences, reasonably warrant the determination that an
individual is known or suspected to be or has been engaged
in conduct constituting, in preparation for, in aid of, or
related to terrorism and terrorist activities.” This standard
was created by executive branch policy and practice and was
not promulgated by Congress or the judicial branch.
However, from 2004 to 2007, the executive branch and its
agencies employed no uniform standard for TSDB
nominations, allowing each agency to use its own
nominating procedures for inclusion in the TSDB based on
each agency’s interpretation of homeland security
presidential directives and the memorandum of opinion that
established the TSC. These directives provided little
instruction. For example, one such directive was Homeland
Security Presidential Directive 6 (HSPD-6), which stated,
“[t]his directive shall be implemented in a manner consistent
with the provisions of the Constitution and applicable laws,
including those protecting the rights of all Americans.”
IBRAHIM V. DHS 15
As the centralized database, the TSDB is the repository
for all watchlist nominations. Various government agents
nominate individuals by filling out a physical form, which is
later computerized and used by the TSDB to indicate on
which watchlist each nominee should be included or
excluded. There are several watchlists affected by the
TSDB, namely5:
• the No Fly list (TSA);
• the Selectee list (TSA);
• Known and Suspected Terrorist File (KSTF,
previously known as the Violent Gang and Terrorist
Organizations File);
• Consular Lookout and Support System (CLASS,
including CLASS-Visa, a Department of State
database used for screening of visa applicants, and
CLASS-Passport, a database that applies only to
United States citizens who might be watchlisted)
(Department of State);
• TECS (not an acronym, but the successor to the
Treasury Enforcement Communications System)
(DHS);
• Interagency Border Inspection System (IBIS)
(DHS);
• Tipoff United States-Canada (TUSCAN) (used to
export information from the United States to
Canada); and
• Tipoff Australia Counterterrorism Information
Control System (TACTICS) (used to export
information from the United States to Australia).
5
This is information derived solely from the record before us, so we
do not represent that this is an exclusive list or that there have not been
subsequent changes to the lists.
16 IBRAHIM V. DHS
These TSDB designations are then exported to the
customer/government watchlists, which are each operated
by various government entities and used in various ways.
For example, TSDB nominations are transmitted to the
Department of State for inclusion in CLASS-Visa or
CLASS-Passport. In ruling on visa applications, consular
officers review the CLASS database for information that
may inform the visa application and adjudication process.
In November 2004, shortly after Dr. Ibrahim’s husband
Mustafa Kamal Mohammed Zaini visited her from Malaysia
to help her after her surgery, FBI Special Agent Kevin
Michael Kelley (Agent Kelley), located in San Jose,
California, unintentionally nominated Dr. Ibrahim, who was
then a graduate student at Stanford University, to various
federal watchlists using the FBI’s National Crime
Information Center (NCIC) Violent Gang and Terrorist
Organizations (VGTO) File Gang Member Entry Form
(VGTOF). VGTO was an office within NCIC. Agent
Kelley misunderstood the directions on the form and
erroneously nominated Dr. Ibrahim to the TSA’s No Fly list
and DHS’s IBIS. He did not intend to do so.
Agent Kelley testified at trial that he intended to
nominate Dr. Ibrahim to the CLASS, the TSA Selectee list,
TUSCAN (information exported to Canada), and TACTICS
(information exported to Australia) lists. He checked the
wrong boxes, filling out the form exactly contrary to the
form’s instructions. The form expressly indicated that he
was to check the boxes for the databases into which the
subject should NOT be placed. Here is a blank copy of the
form:
IBRAHIM V. DHS 17
In other words, Agent Kelley was instructed to check the
boxes for the watchlists for which Dr. Ibrahim was NOT to
be nominated. Here is the form as Agent Kelley completed
it:
Agent Kelley, by failing to check the boxes for the No Fly
list and IBIS, placed Dr. Ibrahim on those watchlists (and by
checking the boxes for CLASS, the TSA Selectee list,
TUSCAN, and TACTICS, Agent Kelley did not place her on
those lists).
Agent Kelley’s squad also was conducting a mosque
outreach program. One purpose of the program was to
18 IBRAHIM V. DHS
provide a point of contact between law enforcement and
mosques and Islamic associations. The outreach program
included Muslim and Sikh communities and organizations in
the San Francisco Bay Area. In December 2004, Agent
Kelley and his colleague interviewed Dr. Ibrahim while she
was still attending Stanford University. 6 He asked, among
other things, about her plans to attend a conference in
Hawaii, her dissertation work, her plans after graduation, her
involvement in the Muslim community, her husband, her
travel plans, and the organization Jemaah Islamiyah, a
Department of State-designated terrorist organization that
Dr. Ibrahim had heard of only on the news. She was not a
member. 7 The Freedom of Information Act-produced
version of Agent Kelley’s interview notes with Dr. Ibrahim
were designated by the FBI as “315,” which denotes
“International Terrorism Investigations.”
On January 2, 2005, when Dr. Ibrahim was detained at
SFO on her way to Hawaii, a DHS aviation security
inspector told her that her name had been removed from the
list.
6
Again, we do not know on this record the motivation for singling
out Dr. Ibrahim for the interview, but we note that the district court stated
“it [was] plausible that Dr. Ibrahim was interviewed in the first place on
account of her roots and religion.” The interview also came soon on the
heels of her Muslim husband’s visit. However, the motivation question
was the basis for one of the claims the district court found it unnecessary
to reach.
7
Dr. Ibrahim was a member of a non-terrorist organization with a
similar-sounding name, Jemaah Islah Malaysia, a Malaysian
professional organization composed primarily of individuals who
studied in the United States or Europe. The district court declined to find
that Agent Kelley confused Jemaah Islah Malaysia with Jemaah
Islamiyah.
IBRAHIM V. DHS 19
Meanwhile, on January 3, 2005, in the visa office of the
Department of State, one official was sitting on a stack of
pending visa revocations that were based on the VGTO
watchlist from which Agent Kelley had nominated Dr.
Ibrahim to the No Fly list. That official e-mailed another
visa official to report that although “[t]hese revocations
contain virtually no derogatory information,” he was going
to revoke them. The official wrote, because “there is no
practical way to determine the basis of the investigation . . .
we will accept that the opening of an investigation itself is a
prima facie indicator of potential ineligibility under
[§ 212(a)(3)(B) of the INA, relating to terrorist activities].”
One of the revocations in that stack was Dr. Ibrahim’s
student visa.
Sure enough, on January 31, 2005, the Department of
State revoked Dr. Ibrahim’s F-1 student visa pursuant to
§ 212(a)(3)(B). In an e-mail conversation dated February 8,
2005 between the chief of the consular section at the U.S.
Embassy in Kuala Lumpur and an official in the
coordination division at the Department of State’s visa
office, designated “VO/L/C,” the consular chief asked about
a prudential visa revocation cable he had received
concerning the events Dr. Ibrahim experienced in January
2005. The Department of State official replied,
I handle revocations in VO/L/C. The short
version is that this person’s visa was revoked
because there is law enforcement interest in
her as a potential terrorist. This is sufficient
to prudentially revoke a visa but doesn’t
constitute a finding of ineligibility. The idea
is to revoke first and resolve the issues later
in the context of a new visa application . . . .
My guess based on past experience is that
20 IBRAHIM V. DHS
she’s probably issuable. However, there’s no
way to be sure without putting her through
the interagency process.
After Dr. Ibrahim’s visa was revoked, the Department of
State entered a record into CLASS that notified any consular
official adjudicating a future visa application on her behalf
that she may be inadmissible under § 212(a)(3)(B). In
December 2005, Dr. Ibrahim was removed from the TSA’s
Selectee list. Around this time, however, she was added to
TACTICS (exports to Australia) and TUSCAN (exports to
Canada). The government has never explained this
placement or the effect of Dr. Ibrahim’s placement on
TACTICS or TUSCAN. 8
Two weeks later, on January 27, 2006, Dr. Ibrahim filed
the underlying action. On February 10, 2006, an
unidentified government agent requested that Dr. Ibrahim be
“Remove[d] From ALL Watchlisting Supported Systems
(For terrorist subjects: due to closure of case AND no nexus
to terrorism).” Answering the question “Is the individual
qualified for placement on the no fly list?” the “No” box was
checked. For the question, “If No, is the individual qualified
for placement on the selectee list?” the “No” box was
checked.
On September 18, 2006, the government removed Dr.
Ibrahim from the TSDB because she did not meet the
“reasonable suspicion standard” for placement on it, which
8
The record does not reflect how Canada and Australia use the
information exported into the TUSCAN and TACTICS databases. The
government declined to provide this information during discovery,
deeming it outside the scope of the Federal Rule of Civil
Procedure 30(b)(6) subpoena.
IBRAHIM V. DHS 21
requires that the government believe “an individual is known
or suspected to be or has been engaged in conduct
constituting, in preparation for, in aid of, or related to
terrorism and terrorist activities.” The record, however,
does not indicate whether she was removed from all of the
customer watchlists that subscribed to the TSDB.
On March 2, 2007, Dr. Ibrahim was placed back on the
TSDB. The record does not explain why she was relisted
on the TSDB or which customer watchlists were to be
notified. Two months later, however, on May 30, 2007, Dr.
Ibrahim was again removed from the TSDB. The record
does not show the extent to which Dr. Ibrahim’s name was
then removed from the other customer watchlists, nor the
reason for the removal.
Dr. Ibrahim’s 2009 visa application to attend
proceedings in this case was initially refused under § 221(g)
of the INA, 8 U.S.C. § 1201(g), because it was determined
that there was insufficient information to make a final
adjudication in the matter. The consular officer requested a
Security Advisory Opinion from the Department of State.
The consular official was concerned that Dr. Ibrahim was
potentially inadmissible under § 212(a)(3)(B) of the INA,
which provides nine classes of aliens ineligible for visas or
admission into the United States based on terrorist activities.
The Security Advisory Opinion from the Department of
State, initially unavailable to Dr. Ibrahim but later produced
in discovery, stated:
Information on this applicant surfaced during
the SAO review that would support a
212(a)(3)(B) inadmissibility finding. Posts
should refuse the case accordingly. Since the
Department reports all visa refusals under
INA Section 212(a)(3)(B) to Congress, post
22 IBRAHIM V. DHS
should notify [the Coordination Division
within the Visa Office] when the visa refusal
is affected [sic]. There has been no request
for an INA section 212(d)(3)(A) waiver at
this time.
Based on the Security Advisory Opinion’s finding, the
consular officer denied her visa application, and wrote the
word “(Terrorist)” on the form to explain the inadmissibility
determination to Dr. Ibrahim.
On October 20, 2009, Dr. Ibrahim was again nominated
to the TSDB pursuant to a secret exception to the reasonable
suspicion standard. The government claims that the nature
of the exception and the reasons for the nomination are state
secrets. In Dr. Ibrahim’s circumstance, the effect of the
nomination was that Dr. Ibrahim’s information was exported
from the TSDB database solely to the Department of State’s
CLASS database and DHS’s TECS database.
From October 2009 to the present, Dr. Ibrahim has been
included on the TSDB, CLASS, and TECS watchlists. She
has been off the No Fly and Selectee lists. She remains in
the TSDB, even though she does not meet the “reasonable
suspicion standard,” pursuant to a classified and secret
exception to that standard.
Government counsel conceded at trial that Dr. Ibrahim
was not a threat to the national security of the United States
and that she never has been. She did not pose (and has not
posed) a threat of committing an act of international or
domestic terrorism with respect to an aircraft, a threat to
airline passenger or civil aviation security, or a threat of
domestic terrorism. Despite this assessment, Dr. Ibrahim
has been unable to return to the United States to this day.
IBRAHIM V. DHS 23
II.
On January 27, 2006, Dr. Ibrahim filed suit against DHS,
TSA, the TSC, the FBI, the Federal Aviation Administration
(FAA), and individuals associated with these entities
(collectively, the federal defendants); the City and County of
San Francisco, the San Francisco Police Department, SFO,
the County of San Mateo, and individuals associated with
these entities (collectively, the city defendants); and United
Airlines, UAL Corporation, and individuals associated with
these entities (collectively, the private defendants). Dr.
Ibrahim asserted § 1983 claims and state-law tort claims
arising out of her detention at SFO, as well as several
constitutional claims based on the inclusion of her name on
government terrorist watchlists. On August 16, 2006, the
district court dismissed her claims against the federal
defendants under 49 U.S.C. § 46110(a), which vests
exclusive original jurisdiction in the courts of appeals over
suits challenging security orders issued by TSA. The order
also dismissed Dr. Ibrahim’s claims against a TSA employee
and the airline. Dr. Ibrahim appealed.
We affirmed in part, reversed in part, and remanded. We
reversed the district court’s dismissal of the federal
defendants, holding that § 46110(a) does not bar district
court jurisdiction over Dr. Ibrahim’s challenges to her
placement on the government terrorist watchlists, including
the No Fly list, because the lists are managed by the TSC
rather than TSA. Ibrahim v. Dep’t of Homeland Sec.,
538 F.3d 1250, 1254–56 (9th Cir. 2008) (Ibrahim I). We
affirmed the district court’s conclusions that § 46110(a)
requires all challenges to TSA policies and procedures
implementing the No Fly and other lists to be filed directly
in the courts of appeals, that the federal agency and airline
actions were not state actions under § 1983, and that the tort
24 IBRAHIM V. DHS
claims against the federal officials in their official capacities
and against the airline defendants were precluded. Id. at
1256–58. We further held that the district court had personal
jurisdiction over the claims against the TSA employee, who
was sued in his individual capacity. 9 Id. at 1258–59. We
remanded the issue of standing to the district court to decide
in the first instance. Id. at 1254–56, 1256 n.9.
After we remanded the case, Dr. Ibrahim filed a Second
Amended Complaint (SAC), alleging various Bivens,
constitutional, § 1983, statutory, state tort, and
Administrative Procedure Act (APA) claims against several
federal agencies and federal officials in their official
capacities (collectively, the Federal Defendants) and state
and local government agencies, certain individuals in their
individual capacities, and the U.S. Investigation Services,
Inc. (collectively, the Non-Federal Defendants). Dr. Ibrahim
requested an injunction that would require the federal
government to take her name off its terrorist watchlists,
including the No Fly list, or, in the alternative, to provide
procedures under which she could challenge her inclusion on
those lists, in addition to other non-monetary requests and
damages. The SAC also sought limited relief relevant to Dr.
Ibrahim’s visa denial, but stopped short of attempting to
force the government to issue her a visa.
Both the Federal Defendants and Non-Federal
Defendants filed motions to dismiss with respect to the
majority of the claims. In an order dated July 27, 2009, the
9
We held that although the TSA employee “lives in Virginia and
has no ties to California,” the court had specific jurisdiction over Dr.
Ibrahim’s claims against him because “(1) [he] purposefully directed his
action (namely, his order to detain Ibrahim) at California; (2) [Dr.]
Ibrahim’s claim arises out of that action; and (3) jurisdiction is
reasonable.” Ibrahim I, 538 F.3d at 1258 (citation omitted).
IBRAHIM V. DHS 25
district court partially granted the Non-Federal Defendants’
motions to dismiss. Thereafter, all of the Non-Federal
Defendants entered into cash settlements with Dr. Ibrahim.
In the same order, the district court again dismissed Dr.
Ibrahim’s claims against the Federal Defendants. These
claims alleged that the inclusion of Dr. Ibrahim’s name on
the government’s terrorist watchlists violated her First
Amendment right to freedom of association and her Fifth
Amendment rights to due process and equal protection. She
also alleged that the Federal Defendants violated the APA,
arguing that the APA waives the sovereign immunity of the
United States, thereby allowing her claims under the First
and Fifth Amendments and authorizing remedies for those
claims.
The district court held that while Dr. Ibrahim could seek
damages for her past injury at SFO (and had successfully
settled that part of the case), she had voluntarily left the
United States and, as a nonimmigrant alien abroad, no longer
had standing to assert constitutional and statutory claims to
seek prospective relief. The district court held that, although
nonimmigrant aliens in the United States had standing to
assert constitutional and statutory claims, a nonimmigrant
alien who had voluntarily left the United States and was at
large abroad had no standing to assert federal claims for
prospective relief in our federal courts. Dr. Ibrahim filed a
second appeal.
We affirmed in part, but reversed as to prospective
standing by holding that even a nonimmigrant alien who had
voluntarily left the United States nonetheless has standing to
litigate federal constitutional claims in the district courts of
the United States so long as the alien had a “substantial
voluntary connection” to the United States. Ibrahim v. Dep’t
of Homeland Sec., 669 F.3d 983, 996 (9th Cir. 2012)
26 IBRAHIM V. DHS
(Ibrahim II). We held that Dr. Ibrahim had such a
connection because of her time at Stanford University, her
continuing collaboration with professors in the United
States, her membership in several professional organizations
located in the United States, the invitations for her to return,
and her network of close friends in the United States. Id. at
993–94, 996. The government did not seek review by the
Supreme Court.
Following the second remand, the government again
filed a motion to dismiss, which the district court denied.
Despite the unequivocal pronouncement from our court and
the district court that Dr. Ibrahim had adequately pleaded
Article III standing, the government argued over the next
year that Dr. Ibrahim lacked standing. The government
made this argument in its third motion to dismiss, its motion
for summary judgment, its statements during trial, and its
proposed findings of fact and conclusions of law. The
government persisted, even though it was abundantly clear
that “the standing issue had gone the other way on appeal.”
From the February 2012 remand through trial, the parties
and the district court were embroiled in discovery disputes
involving the state secrets privilege, the law enforcement
privilege, and assertions of “sensitive security information”
(SSI), 49 C.F.R. § 1520.5. The government invoked these
as bases for withholding classified and otherwise allegedly
sensitive government information from Dr. Ibrahim and her
counsel.
On April 19, 2013, after years of litigation, the district
court finally issued two orders granting in part and denying
in part Dr. Ibrahim’s motions to compel discovery.
Resolving these disputes required the district court judge to
review individually each of the documents Dr. Ibrahim
sought. Most of this review was conducted ex parte and in
IBRAHIM V. DHS 27
camera due to the privileged, classified, or secret nature of
the documents. The state secrets privilege was upheld as to
nearly all of the classified documents in question. The
government’s assertion of other privileges regarding non-
classified documents was overruled as to the majority of the
remaining documents. The district court compelled the
government to release information specifically related to Dr.
Ibrahim’s watchlist history, in addition to her current
watchlist statuses. It also required the government to
produce Federal Rule of Civil Procedure 30(b)(6) witnesses.
At last, Dr. Ibrahim and her attorneys were able to learn
what the government had known all along. On May 2, 2013,
the government stated that Dr. Ibrahim was inadvertently
placed on the No-Fly list but did not explain the details of
this mistake, or who was involved. On May 2, 2013, when
the government responded to Dr. Ibrahim’s interrogatory
requests, Dr. Ibrahim learned, for the first time, her historical
and current watchlist statuses. 10 On September 12, 2013,
again over the government’s vigorous objections, Dr.
Ibrahim’s attorneys deposed Agent Kelley and learned that
her placement on the No Fly and IBIS watchlists was, in fact,
10
The government designated all of its interrogatory responses
“attorneys’ eyes only,” which, under the protective order, meant that
only Dr. Ibrahim’s attorneys were allowed to review information
produced with this stamp, and Dr. Ibrahim herself was not permitted to
review those documents. As a result, it is difficult to discern precisely
when Dr. Ibrahim herself was able to learn certain information.
However, with respect to information regarding her current and
historical watchlist statuses, the district court concluded those were not
protected by privilege in its April 2013 order, so it is likely counsel was
able to inform Dr. Ibrahim of her watchlist statuses the day the
interrogatory responses were filed.
28 IBRAHIM V. DHS
a mistake based on Agent Kelley’s misreading of the form. 11
In sum, the government failed to reveal that Dr. Ibrahim’s
placement on the No Fly list was a mistake until two months
before trial, and eight years after Dr. Ibrahim filed suit. And
at all times, as the government vigorously contested Dr.
Ibrahim’s discovery requests, and lodged over two hundred
objections and instructions not to answer questions in
depositions, the government was aware that she was not
responsible for terrorism or any threats against the United
States.
The government’s discovery games stretched up to and
through trial. The government announced on at least two
occasions that if it invoked the state secrets privilege to
withhold information, then that evidence could not be relied
upon by either side at trial. After making such
representations on the record, on September 13, 2013, the
district court ordered the government to confirm that neither
party could use information withheld on grounds of state
secrets privilege. The government affirmed it would not rely
on any information withheld on grounds of privilege from
Dr. Ibrahim. The government nevertheless reversed course
during trial and sought to prevail by having this action
dismissed due to its inability to disclose state secrets.
The government also filed a motion for summary
judgment. A hearing was held on the government’s motion
on October 31, 2013. Instead of discussing the merits of the
summary judgment motion, the government used the vast
majority of the hearing time to discuss whether or not the
11
Dr. Ibrahim first learned that Agent Kelley had participated in the
2004 interview and that Kelley was personally responsible for
nominating her to the TSDB during the deposition of the Acting Deputy
Director of the TSC on May 29, 2013.
IBRAHIM V. DHS 29
trial should be open to the public and whether certain
information listed on Dr. Ibrahim’s demonstratives was
subject to various privileges. The district court ultimately
declined to hear further argument and decided the motion on
the papers.
The government’s motion for summary judgment was
granted in limited part but mostly denied on November 4,
2013. Dr. Ibrahim’s “exchange of information” claim based
on the First Amendment was dismissed. Dr. Ibrahim’s
claims based on procedural and substantive due process,
equal protection, and First Amendment rights of expressive
association and against retaliation proceeded to trial. The
government raised lack of standing, yet again, and was
denied, yet again. For the first time, and contrary to what it
had represented before, the government further argued that
summary judgment in its favor was appropriate based on the
state secrets privilege, pursuant to our court’s decision in
Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1079
(9th Cir. 2010) (en banc) (noting that even when evidence is
excluded via an invocation of state secrets, the case may still
need to be dismissed because “it will become apparent
during the [United States v. Reynolds, 345 U.S. 1 (1953) 12]
12
Analyzing claims under the Reynolds privilege involves three
steps:
First, we must “ascertain that the procedural
requirements for invoking the state secrets privilege
have been satisfied.” Second, we must make an
independent determination whether the information is
privileged …. Finally, “the ultimate question to be
resolved is how the matter should proceed in light of
the successful privilege claim.”
30 IBRAHIM V. DHS
analysis that the case cannot proceed without privileged
evidence, or that litigating the case to a judgment on the
merits would present an unacceptable risk of disclosing state
secrets”).
At the final pretrial conference, the government made
what amounted to a motion for reconsideration of its
previously denied motion for summary judgment on state
secrets grounds. The government argued that the action
should be dismissed because the core of the case had been
excluded as state secrets. The motion was denied on several
grounds. First, the government had failed to raise such an
argument until weeks before trial. Second, it was too late
and too unsettling for the government to reverse its prior
position. Third, even under Jeppesen, 614 F.3d at 1080, the
district court could not say with certainty that Dr. Ibrahim
would be unable to prove her case at trial or that the
government would be absolutely deprived of a meritorious
and complete defense. The district court planned to allow
both sides to present their unclassified evidence through the
“normal” trial procedure and then to allow the government
to submit an ex parte and under seal submission to try to
explain how its state secrets might bear on the actual trial
issues. Surprisingly, although no classified information was
used at trial, the government made numerous privilege
assertions and motions to close the courtroom. Due to these
assertions, the district judge at least ten times “reluctantly”
asked the press and the public to leave the courtroom.
On December 2, 2013, the first day of trial, before
opening statements, Dr. Ibrahim’s counsel reported that Dr.
Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1202 (9th Cir.
2007) (citations omitted) (quoting El-Masri v. United States, 479 F.3d
296, 304 (4th Cir. 2007)).
IBRAHIM V. DHS 31
Ibrahim’s daughter—a U.S. citizen born in the United States
and a witness disclosed on Dr. Ibrahim’s witness list—was
not permitted to board her flight from Kuala Lumpur to
attend trial, evidently because she too was now on the No
Fly list. Consequently, Dr. Ibrahim’s daughter missed her
flight and was forced to reschedule. The district court
concluded this was a mistake, and the government quickly
remedied this error.
After a one-week bench trial, in the first No Fly list trial
ever conducted, the district court found in Dr. Ibrahim’s
favor on her procedural due process claim and ordered the
government to remove all references to the mistaken
designations by Agent Kelley in 2004 on all terrorist
watchlist databases and records; to inform Dr. Ibrahim of the
specific subsection of the INA that rendered Dr. Ibrahim
ineligible for a visa in 2009 and 2013; to inform Dr. Ibrahim
she is no longer on the No Fly list and has not been since
2005; and to inform Dr. Ibrahim that she is eligible to apply
for a discretionary visa waiver under 8 U.S.C.
§ 1182(3)(D)(iv) and 22 C.F.R. § 41.121(b)(1). The district
court declined to reach Dr. Ibrahim’s substantive due
process, equal protection, First Amendment, and APA
claims, because “those arguments, even if successful, would
not lead to any greater relief than already ordered.”
Having won an outstanding victory, Dr. Ibrahim’s
lawyers petitioned for fees under the EAJA. In the district
court’s April 15, 2014 fee order, although the district court
applauded the lawyers’ commitment to this difficult and
unprecedented case, it awarded only limited compensation.
The court acknowledged that Dr. Ibrahim “did not outright
lose” on her substantive due process, equal protection, First
Amendment, and APA claims, but treated those claims as
“unsuccessful” when it calculated fees under Hensley. The
32 IBRAHIM V. DHS
district court found that her substantive due process and
APA claims were related to the procedural due process claim
on which she prevailed, so it allowed fees on these claims.
But the court also ruled that her First Amendment and equal
protection claims were not related to the successful claim,
and denied fees for work performed on those claims. The
district court also concluded that Dr. Ibrahim’s counsel was
not entitled to fees for work performed on Dr. Ibrahim’s visa
issues, the settlement with the Non-Federal Defendants,
litigation of standing prior to Ibrahim II (although it
permitted fees for time after Ibrahim II), litigation of
privilege issues, and other miscellaneous work. The district
court also found that the government did not act in bad faith,
that Dr. Ibrahim’s counsel was not entitled to a rate
enhancement beyond the $125 per hour fee 13 stated in
28 U.S.C. § 2412(d)(2)(A)(ii), and that counsel was not
entitled to fees as discovery sanctions pursuant to Federal
Rules of Civil Procedure 37 and 16. The district court
appointed a special master to determine the appropriate
award of fees and costs based on the district court’s findings.
Thereafter, the parties and the court engaged in a lengthy
and contentious fee dispute before the special master. The
district court ultimately adopted the special master’s
findings and reduced Dr. Ibrahim’s fees for various
witnesses and costs associated with those witnesses,
expenses related to obtaining TSA clearance, costs that
would be “reasonably charged” to the client, and costs for
multiple copies of the same book; and rejected certain
expenses for lack of supporting documentation or sufficient
itemization. In total, Dr. Ibrahim sought $3,630,057.50 in
market-rate attorneys’ fees and $293,860.18 in expenses.
13
The district court allowed a rate enhancement for James McManis
because of his “distinctive knowledge and skills.”
IBRAHIM V. DHS 33
On October 9, 2014, the district court ultimately awarded Dr.
Ibrahim $419,987.36 in fees and $34,768.71 in expenses.
Dr. Ibrahim appealed the underlying legal framework the
district court utilized to determine the fees she was eligible
to recover, various specific reductions to eligible fees, and
the striking of her objections to the special master’s
recommendations.
On appeal, in the now-withdrawn panel opinion, our
court adopted a number of the district court’s rulings under
a different approach. Ibrahim v. U.S. Dep’t of Homeland
Sec., 835 F.3d 1048 (9th Cir. 2016), reh’g en banc granted,
878 F.3d 703 (9th Cir. 2017) (Ibrahim III). The three-judge
panel concluded that “it was not an abuse of discretion to
find that [Dr.] Ibrahim’s unsuccessful claims were unrelated,
because although the work done on those claims could have
contributed to her ultimately successful claim, the facts and
legal theories underlying [Dr.] Ibrahim’s claims make that
result unlikely.” Id. at 1063. The panel rested this
conclusion on the novel theory that, because the theories
underlying claims the district court declined to reach were
“mutually exclusive” to the successful claims, the unreached
claims were unrelated. Id. at 1062–63. The panel also held
that the district court incorrectly considered substantial
justification at each stage of litigation; that the government
did not act in bad faith; that the district court did not err in
determining that Dr. Ibrahim had failed to abide by its page
limits in objecting to the special master’s report and
recommendation; and that the district court did not abuse its
discretion in striking Dr. Ibrahim’s objections to the special
master’s report and recommendation. Id. at 1052, 1065–66.
We now clarify that when a district court awards
complete relief on one claim, rendering it unnecessary to
reach alternative claims, the alternative claims cannot be
34 IBRAHIM V. DHS
deemed unsuccessful for the purpose of calculating a fee
award. We also reject the post hoc “mutual exclusivity”
approach to determining whether “unsuccessful” claims are
related to successful claims and reaffirm that Hensley sets
forth the correct standard of “relatedness” for claims under
the EAJA. And we reaffirm that in evaluating whether the
government’s position is substantially justified, we look at
whether the government’s and the underlying agency’s
positions were justified as a whole and not at each stage.
III.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review a district court’s award of fees under the EAJA for
abuse of discretion. Thomas v. City of Tacoma, 410 F.3d
644, 649 (9th Cir. 2005); Gonzales v. Free Speech Coal.,
408 F.3d 613, 618 (9th Cir. 2005); Schwarz v. Sec’y of
Health & Human Servs., 73 F.3d 895, 900 (9th Cir. 1995).
We review a district court’s finding on the question of bad
faith for clear error. Cazares v. Barber, 959 F.2d 753, 754
(9th Cir. 1992). We review the district court’s interpretation
of the EAJA de novo. Edwards v. McMahon, 834 F.2d 796,
801 (9th Cir. 1987). “[A] district court’s fee award will be
overturned if it is based on an inaccurate view of the law or
a clearly erroneous finding of fact.” Corder v. Gates,
947 F.2d 374, 377 (9th Cir. 1991).
IV.
The parties now 14 do not dispute that Dr. Ibrahim is
entitled to attorneys’ fees under the EAJA. What they do
14
Before the district court, the government opposed Dr. Ibrahim’s
request for attorneys’ fees on substantial justification grounds, and it
originally cross-appealed the entire award in this appeal. Before
IBRAHIM V. DHS 35
dispute is whether the amount of fees the district court
awarded resulted from a proper application of the EAJA and
common law.
In enacting the EAJA, Congress stated:
For many citizens, the costs of securing
vindication of their rights and the inability to
recover attorney fees preclude resort to the
adjudicatory process. . . . When the cost of
contesting a Government order, for example,
exceeds the amount at stake, a party has no
realistic choice and no effective remedy. In
these cases, it is more practical to endure an
injustice than to contest it.
S. Rep. No. 96-253, at 5 (1979).
“The clearly stated objective of the EAJA is to eliminate
financial disincentives for those who would defend against
unjustified governmental action and thereby to deter the
unreasonable exercise of Government authority.” Ardestani
v. I.N.S., 502 U.S. 129, 138 (1991); see also Jean, 496 U.S.
at 163 (“[T]he specific purpose of the EAJA is to eliminate
for the average person the financial disincentive to challenge
unreasonable governmental actions.”). Congress
specifically intended the EAJA to deter unreasonable agency
conduct. Jean, 496 U.S. at 163 n.11 (quoting the statement
of purpose for the EAJA, Pub. L. No. 96-481, §§ 201–08,
94 Stat. 2321, 2325–30 (1980)).
argument, however, the government moved to voluntarily dismiss the
cross-appeal and paid to Dr. Ibrahim the now uncontested amounts of
attorneys’ fees and expenses awarded by the district court.
36 IBRAHIM V. DHS
The policy behind the EAJA “is to encourage litigants to
vindicate their rights where any level of the adjudicating
agency has made some error in law or fact and has thereby
forced the litigant to seek relief from a federal court.” Li v.
Keisler, 505 F.3d 913, 919 (9th Cir. 2007). “[W]e have
consistently held that regardless of the government’s
conduct in the federal court proceedings, unreasonable
agency action at any level entitles the litigant to EAJA fees.”
Id.
“The EAJA applies to a wide range of awards in which
the cost of litigating fee disputes would equal or exceed the
cost of litigating the merits of the claim.” Jean, 496 U.S. at
163–64. The EAJA was designed to remedy this situation
by providing for an award of reasonable attorneys’ fees to a
“prevailing party” in a “civil action” unless the position
taken by the United States at issue “was substantially
justified” or “special circumstances make an award unjust.”
Id. at 158; 28 U.S.C. § 2412(d)(1)(A).
The EAJA specifically provides:
Except as otherwise specifically provided by
statute, a court shall award to a prevailing
party other than the United States fees and
other expenses, in addition to any costs
awarded pursuant to subsection (a), incurred
by that party in any civil action (other than
cases sounding in tort), including
proceedings for judicial review of agency
action, brought by or against the United
States in any court having jurisdiction of that
action, unless the court finds that the position
of the United States was substantially
justified or that special circumstances make
an award unjust.
IBRAHIM V. DHS 37
28 U.S.C. § 2412(d)(1)(A).
Thus, as the Supreme Court held in Jean:
eligibility for a fee award in any civil action
requires: (1) that the claimant be “a
prevailing party”; (2) that the Government’s
position was not “substantially justified”;
(3) that no “special circumstances make an
award unjust”; and, (4) pursuant to 28 U.S.C.
§ 2412(d)(1)(B), that any fee application be
submitted to the court within 30 days of final
judgment in the action and be supported by
an itemized statement.
496 U.S. at 158.
The district court correctly concluded that Dr. Ibrahim
was the prevailing party in this case. The third and fourth
Jean factors are not at issue. The only remaining issue as to
Dr. Ibrahim’s entitlement to fees is whether the
government’s position was substantially justified.
A. Substantial Justification
Where, as here, a movant under the EAJA has
established that it is a prevailing party, “the burden is on the
government to show that its litigation position was
substantially justified on the law and the facts.” Cinciarelli
v. Reagan, 729 F.2d 801, 806 (D.C. Cir. 1984). To establish
substantial justification, the government need not establish
that it was correct or “justified to a high degree”—indeed,
since the movant is established as a prevailing party it could
never do so—but only that its position is one that “a
reasonable person could think it correct, that is, [that the
38 IBRAHIM V. DHS
position] has a reasonable basis in law and fact.” 15 Pierce v.
Underwood, 487 U.S. 552, 565, 566 n.2 (1988). That the
government lost (on some issues) does not raise a
presumption that its position was not substantially justified.
Edwards, 834 F.2d at 802 (citation omitted). Fees may be
denied when the litigation involves questions of first
impression, but “whether an issue is one of first impression
is but one factor to be considered.” United States v. Marolf,
277 F.3d 1156, 1162 n.2 (9th Cir. 2002).
When evaluating the government’s “position” under the
EAJA, we consider both the government’s litigation position
and the “action or failure to act by the agency upon which
the civil action is based.” 28 U.S.C. § 2412(d)(1)(B). Thus,
the substantial justification test is comprised of two
inquiries, one directed toward the government agency’s
conduct, and the other toward the government’s attorneys’
conduct during litigation. See Gutierrez v. Barnhart,
274 F.3d 1255, 1259 (9th Cir. 2001). The test is an inclusive
one; we consider whether the government’s position “as a
whole” has “a reasonable basis in both law and fact.” Id. at
1258, 1261; see also Meier v. Colvin, 727 F.3d 867, 870 (9th
Cir. 2013).
The district court, invoking our decision in Corbin v.
Apfel, 149 F.3d 1051 (9th Cir. 1998), concluded that, in
exceedingly complex cases, a court may appropriately
determine whether the government was substantially
justified at each “stage” of the litigation and make a fee
award apportioned to those separate determinations. It
accordingly disallowed fees for discrete positions taken by
the government at different stages of the litigation because,
15
The partial dissent is incorrect to view the issue as solely a factual
one, as we must consider the law as applied to the facts.
IBRAHIM V. DHS 39
in its view, the government’s positions in each instance were
substantially justified. This approach was error, as it is
contrary to the Supreme Court’s instructions in Jean.
In Jean, the Supreme Court rejected the government’s
argument that it could assert a “‘substantial justification’
defense at multiple stages of an action.” 496 U.S. at 158–
59. Examining the statutory language, the Court noted the
complete absence of any textual support for this position. Id.
at 159. Moreover, “[s]ubsection (d)(1)(A) refers to an award
of fees ‘in any civil action’ without any reference to separate
parts of the litigation, such as discovery requests, fees, or
appeals.” Id. The Court also noted that “[t]he reference to
‘the position of the United States’ in the singular also
suggests that the court need make only one finding about the
justification of that position.” Id. An amendment to the
EAJA made clear that the “‘position of the United States’
means, in addition to the position taken by the United States
in the civil action, the action or failure to act by the agency
upon which the civil action is based.” Pub. L. No. 99-80,
§ 2(c)(2)(B), 99 Stat. 183, 185 (1985) (codified at 28 U.S.C.
§ 2412(d)(2)(D)). As the Court reiterated, “Congress’
emphasis on the underlying Government action supports a
single evaluation of past conduct.” Jean, 496 U.S. at 159 n.7
(citing H.R. Rep. No. 98-992, at 9, 13 (1984) (“[T]he
amendment will make clear that the Congressional intent is
to provide for attorney fees when an unjustifiable agency
action forces litigation, and the agency then tries to avoid
such liability by reasonable behavior during the litigation.”),
and S. Rep. No. 98-586, at 10 (1984) (“Congress expressly
recognized ‘that the expense of correcting error on the part
of the Government should not rest wholly on the party whose
willingness to litigate or adjudicate has helped to define the
limits of Federal authority.’” (citation omitted))). The Jean
Court concluded that “[t]he single finding that the
40 IBRAHIM V. DHS
Government’s position lacks substantial justification, like
the determination that a claimant is a ‘prevailing party,’ thus
operates as a one-time threshold for fee eligibility.” Id. at
160.
In sum, “[a]ny given civil action can have numerous
phases,” as evidenced by the case at hand. Id. at 161. But
the Supreme Court clearly instructed, and almost all courts
have clearly understood, 16 that “the EAJA—like other fee-
16
All but two circuits agree that “the EAJA—like other fee-shifting
statutes—favors treating a case as an inclusive whole, rather than as
atomized line-items.” See Glenn v. Comm’r of Soc. Sec., 763 F.3d 494,
498–99 (6th Cir. 2014) (adopting a single inquiry test and noting that
district courts cannot simply compare the number of successful claims to
the number of unsuccessful claims in a single appeal) (“Rather, the
question is whether the government’s litigating position . . . is justified
to a degree that could satisfy a reasonable person and whether it was
supported by law and fact.” (internal quotation marks and citations
omitted)); United States v. 515 Granby, LLC, 736 F.3d 309, 315–17 (4th
Cir. 2013) (considering the government’s pre- and post-litigation
conduct as a whole and noting that “an unreasonable prelitigation
position will generally lead to an award of attorney’s fees under the
EAJA”); United States v. Hurt, 676 F.3d 649, 653–54 (8th Cir. 2012)
(examining government’s conduct as a whole); Gomez-Beleno v. Holder,
644 F.3d 139, 145 n.3 (2d Cir. 2011) (considering the government’s
position as a whole rather than making separate substantial justification
findings for different stages of the proceedings); Wagner v. Shinseki,
640 F.3d 1255, 1259 (Fed. Cir. 2011) (assessing the government’s
litigation position in totality); Saysana v. Gillen, 614 F.3d 1, 5–7 (1st Cir.
2010) (same); Hackett v. Barnhart, 475 F.3d 1166, 1173–74 (10th Cir.
2007) (same); Sims v. Apfel, 238 F.3d 597, 602 (5th Cir. 2001) (same);
United States v. Jones, 125 F.3d 1418, 1428–29 (11th Cir. 1997) (same);
Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 131 (3d Cir. 1993)
(adopting a single inquiry test, though contrary to our holding in this
case, requiring a district court to “evaluate every significant argument
made by an agency … to determine if the argument is substantially
IBRAHIM V. DHS 41
shifting statutes—favors treating a case as an inclusive
whole, rather than as atomized line-items.” Id. at 161–62.
Our decision in Corbin is inapposite because that case
hinged on jurisdictional features present when we review
agency actions, but not present here. 149 F.3d 1051. In
Corbin, a case involving judicial review of the agency’s
denial of disability benefits, we upheld EAJA fee awards that
were apportioned to successive stages of the underlying
justified” as “necessary to . . . determine whether, as a whole, the
Government’s position was substantially justified”).
The D.C. and Seventh Circuits stand alone in declining to adopt a
single inquiry test. The D.C. Circuit has rejected a reading of Jean that
would preclude a claim-by-claim determination on the ground that such
a rule would render the EAJA a “virtual nullity” because government
conduct is nearly always grouped with or part of some greater, and
presumably justified, action. Air Transport Ass’n of Canada v. F.A.A.,
156 F.3d 1329, 1332 (D.C. Cir. 1998). In the same vein, the Seventh
Circuit has cautioned against taking “judicial language out of context,”
reasoning that Jean “does not address the question whether allocation is
permissible under the [EAJA], thus allowing an award of fees for the part
of the government’s case that was not substantially justified.” Gatimi v.
Holder, 606 F.3d 344, 350 (7th Cir. 2010). We understand these
concerns, but we think that Congress clearly contemplated the denial of
attorneys’ fees even where some of the litigation conduct was unjustified
when it used the qualifying term “substantial” rather than “total” or
“complete.” See 28 U.S.C. § 2412(d)(1)(A); see also United States v.
Rubin, 97 F.3d 373, 375–76 (9th Cir. 1996) (affirming the district court’s
denial of fees because the government was substantially justified in most,
but not all, of its positions). Further, we conclude that this happenstance
will predominantly affect cases challenging the government agency’s
litigation position, and likely have little effect in cases where the
government agency’s conduct is unjustified, as EAJA “fees generally
should be awarded where the government’s underlying action was
unreasonable even if the government advanced a reasonable litigation
position.” Marolf, 277 F.3d at 1159.
42 IBRAHIM V. DHS
litigation, in which we reversed and remanded for further
proceedings before the agency. 17 Id. at 1052. Because
Corbin prevailed upon judicial review and was the prevailing
party at that stage—whatever the ultimate disposition of his
disability claim—he was entitled to EAJA attorneys’ fees.
Id. at 1053. But, the administrative review context is unique
because the different stages of the litigation are reviewed by
different, unconnected quasi-judicial systems. In
administrative review cases, we award fees when we vacate
an administrative determination and require the agency to
conduct new proceedings. See, e.g., Rueda-Menicucci v.
I.N.S., 132 F.3d 493, 495 (9th Cir. 1997) (awarding fees to
prevailing petitioners on a petition for review from a Board
of Immigration Appeals proceeding without regard to
whether they would later succeed on underlying asylum
claims, explaining that “the remand terminates judicial
proceedings and results in the entry of a final judgment”);
Kelly v. Nicholson, 463 F.3d 1349, 1355–56 (Fed. Cir. 2006)
(reversing and remanding denial of EAJA fees after an
erroneous Agent Orange disability determination by the
Department of Veterans Affairs); Former Emps. of Motorola
Ceramic Prods. v. United States, 336 F.3d 1360, 1361 (Fed.
Cir. 2003) (vacating and remanding denial of EAJA fees
after an erroneous analysis of readjustment of benefits by the
Department of Labor). This eligibility for fees arises
whether the plaintiff challenges administrative action under
a statute specifically providing for review, as with the
examples above, or under an umbrella statute authorizing
challenges to agency action, such as the APA. See, e.g.,
17
“Remand” is something of a misnomer, albeit one oft used in
agency cases, as in fact “the civil action seeking judicial review of the
. . . final decision,” Shalala v. Schaefer, 509 U.S. 292, 299 (1993)
(internal citation and quotation marks omitted), is terminated, not
remanded.
IBRAHIM V. DHS 43
Wood v. Burwell, 837 F.3d 969, 977 (9th Cir. 2016)
(granting “prevailing party” status for success on an APA
claim alleging procedural deficiencies, notwithstanding
plaintiffs’ later loss on their “substantive” claims). By
contrast, the various stages at issue here were all part of one
litigation in federal court; the case was never returned to an
agency for further proceedings. Therefore, Corbin does not
apply. 18
The district court thus erred in its piecemeal approach to
substantial justification. Most fundamentally, the agency
position upon which these going-on-thirteen years of
litigation was based was not justified at all, much less
substantially. The district court correctly recognized as
much, finding: “The original sin—Agent Kelley’s mistake
and that he did not learn about his error until his deposition
eight years later—was not reasonable” under the EAJA.
Whether the error is attributable to the failure to train Agent
Kelley, the counter-intuitive nature of the form (check the
categories that do NOT apply), the lack of cross-checking or
other verification procedures, or anti-Muslim animus (Agent
Kelley interviewed Dr. Ibrahim on December 23, 2004, as
part of an International Terrorism Investigation), the precise
cause is irrelevant to, and does not mitigate, the lack of any
basis to place Dr. Ibrahim on the list, nor does it justify a
reduction in fees. 19 See Marolf, 277 F.3d at 1159 (holding
18
And even if Corbin did apply to this case, the district court
misapplied Corbin because it evaluated whether each individual
argument at each stage of the litigation was substantially justified, rather
than the government’s position at each stage as a whole.
19
We make no findings, nor can we on appeal, as to how this
mistaken placement came about, and we ascribe no nefarious
motivations to the government as an entity. Again, we cannot know on
44 IBRAHIM V. DHS
that EAJA “fees generally should be awarded where the
government’s underlying action was unreasonable even if
the government advanced a reasonable litigation position”).
The district court correctly concluded that the
government’s litigation position—to defend the
indefensible, its No Fly list error—was not reasonable. As
the district court stated, “[t]he government’s defense of such
inadequate due process in Dr. Ibrahim’s circumstance—
when she was concededly not a threat to national security—
was not substantially justified.”
Those conclusions should have been the end of the
district court’s EAJA eligibility analysis. After the
government engaged in years of scorched earth litigation, it
finally conceded during trial in December 2013 that Dr.
Ibrahim is “not a threat to our country. She does not pose
(and has not posed) a threat of committing an act of
international or domestic terrorism with respect to an
aircraft, a threat to airline passenger or civil aviation
security, or a threat of domestic terrorism.” But the
government knew this in November 2004, when Agent
Kelley completed the form; it knew it in January 2005, when
the DHS agent told Dr. Ibrahim she was not on the No Fly
list; and it was well aware of it two weeks after Dr. Ibrahim
filed the underlying action, when a government agent
ordered her “Remove[d] from ALL watchlisting supported
systems (For terrorist subjects: due to closure of case AND
no nexus to terrorism)” and further stated that Dr. Ibrahim
was not qualified for placement on either the No Fly or TSA
Selectee lists. Yet knowing this, the government essentially
this record precisely why Dr. Ibrahim’s name was listed on the TSDB
watchlist to begin with.
IBRAHIM V. DHS 45
doubled-down over the course of the litigation with a no-
holds-barred defense.
That some of the arguments made along the way by the
government attorneys passed the straight face test until they
were reversed on appeal does not persuade us that the
government’s position was substantially justified. 20 And the
court is to consider the government agencies’ conduct during
20
We do not find that the government’s defense of this litigation
was unreasonable at all points of the litigation. Instead, what was not
substantially justified was the government’s continued defense of issues
even after the reasons justifying their defense disappeared. For example,
the government was justified in initially raising standing arguments, but
was not justified in continuing to raise the same meritless standing
arguments on numerous occasions once that issue had been definitively
resolved by both our court and the district court. In a similar vein, while
the government may have been justified in defending this litigation and
refusing to tell Dr. Ibrahim her No Fly list status pursuant to its Glomar
policy—a policy whereby the government refuses to confirm or deny the
existence of documents in response to a Freedom of Information Act
request, see N.Y. Times v. U.S. Dep’t of Justice, 756 F.3d 100, 105 (2d
Cir. 2014), amended by 758 F.3d 436 (2d Cir. 2014)—any justification
it had to defend Dr. Ibrahim’s No Fly list status vanished once she was
made aware of her watchlist statuses and it had admitted its mistake in
2013.
Further, when considering the government’s litigation position, we
also consider the government’s positions on discovery and other non-
merits issues, i.e., the government’s conduct as a whole. See United
States v. Rubin, 97 F.3d 373, 375 (9th Cir. 1996) (citing United States v.
Powell, 379 U.S. 48, 57–58 (1964)) (considering government’s conduct
during discovery when performing substantial justification inquiry).
Here, as discussed at length below, the government played discovery
games, made false representations to the court, misused the court’s time,
and interfered with the public’s right of access to trial. Thus, the
government attorneys’ actual conduct during this litigation was ethically
questionable and not substantially justified.
46 IBRAHIM V. DHS
the course of this litigation as well. See 28 U.S.C.
§ 2412(d)(2)(D) (“‘position of the United States’ means, in
addition to the position taken by the United States in the civil
action, the action or failure to act by the agency upon which
the civil action is based”). From the suit’s inception, the
government agencies’ actions, including their on-again, off-
again placement of Dr. Ibrahim on various government
watchlists; refusal to allow her to reenter the United States
at all, even to attend her own trial; and delay of her
U.S.-born, U.S.-citizen daughter’s attendance at trial, were
unreasonable and served only to drive up attorneys’ fees.
Indeed, as a consequence of the government’s conduct, Dr.
Ibrahim was deposed in London, England, as opposed to the
Northern District of California—which also drove up the
costs and fees.
In sum, neither the agencies’ conduct nor the
government’s litigation position was substantially
justified. 21 The EAJA mandates that attorneys’ fees be
21
The partial dissent argues that “Supreme Court precedent requires
that we allow the district court to make [the] determination” as to
whether the government’s position was substantially justified.
Concurring & Dissenting Op. at 78 (citing Pierce, 487 U.S. at 560); see
also id. at 78–81. Not so. The dissent is actually quoting from the
portion of the Pierce decision where Justice Scalia is deciding which of
the three general standards of review should apply to the district court’s
“substantial justification” determination—de novo, clear error, or abuse
of discretion. Pierce, 487 U.S. at 558. He decides that the abuse of
discretion standard applies because the appropriate degree of deference
is inherent in the standard itself. Id. at 559–63. Here, we applied the
abuse of discretion standard and concluded the district court abused its
discretion. Notably, in Pierce, the Court also declared that an abuse of
discretion standard will “implement our view that a ‘request for
attorney’s fees should not result in a second major litigation.’” Id. at 563
(quoting Hensley, 461 U.S. at 437). But that is exactly what has
happened here. See infra Part V. We have already engaged in the
IBRAHIM V. DHS 47
awarded to Dr. Ibrahim’s attorneys, subject only to
reasonableness review. Jean, 496 U.S. at 161. “It remains
for the district court to determine what fee is ‘reasonable.’”
Hensley, 461 U.S. at 433.
B. Reasonableness
In Hensley, the Supreme Court set out a two-pronged
approach for determining the amount of fees to be awarded
when a plaintiff prevails on only some of his claims for relief
or achieves “limited success.” Sorenson v. Mink, 239 F.3d
1140, 1147 (9th Cir. 2001) (citing Hensley, 461 U.S. at 436–
37). First, we ask, “did the plaintiff fail to prevail on claims
that were unrelated to the claims on which he succeeded?”
Hensley, 461 U.S. at 434. This inquiry rests on whether the
“related claims involve a common core of facts or are based
on related legal theories,” Webb v. Sloan, 330 F.3d 1158,
1168 (9th Cir. 2003) (citing Hensley, 461 U.S. at 435), with
“the focus . . . on whether the claims arose out of a common
course of conduct,” id. at 1169 (emphasis added) (citing
Schwarz, 73 F.3d at 903 (interpreting Hensley)). Second, we
ask whether “the plaintiff achieve[d] a level of success that
makes the hours reasonably expended a satisfactory basis for
making a fee award?” Hensley, 461 U.S. at 434. If the court
concludes the prevailing party achieved “excellent results,”
it may permit a full fee award—that is, the entirety of those
hours reasonably expended on both the prevailing and
unsuccessful but related claims. Id. at 435; Schwarz, 73 F.3d
at 905–06.
“unusual expense” of reviewing over 7,000 pages of record and over
1,000 pages of trial exhibits, Pierce, 487 U.S. at 560, and we see no
further need to triplicate this work.
48 IBRAHIM V. DHS
1. “Unsuccessful Claims”
The district court erroneously determined that Dr.
Ibrahim was entitled to reasonable fees and expenses with
respect to only her procedural due process claim, which
provided her with substantial relief, and her related
substantive due process and APA claims. Because Dr.
Ibrahim’s equal protection, APA, substantive due process,
and First Amendment claims “would not lead to any greater
relief than [what the district court had] already ordered,” the
district court declined to reach them. The district court then
treated these unreached claims as unsuccessful, even while
acknowledging that Dr. Ibrahim “did not outright lose on
these claims,” and disallowed counsel’s reasonable fees and
expenses on the “unrelated” First Amendment and equal
protection claims. This overall approach was error.
The Hensley Court recognized that in complex civil
rights litigation, plaintiffs may raise numerous claims, not all
of which will be successful: “Litigants in good faith may
raise alternative legal grounds for a desired outcome, and the
court’s rejection of or failure to reach certain grounds is not
a sufficient reason for reducing a fee. The result is what
matters.” Hensley, 461 U.S. at 435 (emphasis added). And
where, as here, “a plaintiff has obtained excellent results, his
attorney should recover a fully compensatory fee.” Id. The
district court’s rationale—that because Dr. Ibrahim won
substantial relief on one claim, and it was therefore
unnecessary to reach her other equally pursued claims that
could also lead to the same relief, no fees were available for
the unreached claim—turns Hensley on its head.
We are aware of no court that has held that a plaintiff
who obtains full relief on some claims, thereby rendering it
unnecessary to reach the remaining claims, “lost” on the
unreached claims. When confronted with this question, our
IBRAHIM V. DHS 49
sister circuits that have addressed the issue have uniformly
declined to adopt the district court’s analysis. The Sixth
Circuit “decline[d] the government’s invitation to apportion
[plaintiff’s] attorney fees to the single claim addressed in
[its] previous opinion.” Sakhawati v. Lynch, 839 F.3d 476,
480 (6th Cir. 2016). The Eighth Circuit also refused to
reduce fees where the district court found in plaintiffs’ favor
on their state claim without reaching the federal claims,
because plaintiffs’ federal claims “were alternative grounds
for the result the district court reached” and “plaintiffs fully
achieved [their] goal by prevailing on their state
constitutional claim.” Emery v. Hunt, 272 F.3d 1042, 1047
(8th Cir. 2001). And the Seventh Circuit rejected
defendants’ argument that plaintiff did not succeed on her
sexual harassment claim where “the court did not find in
[defendant’s] favor on the sexual harassment claim; it
merely did not reach the merits of the issue.” Dunning v.
Simmons Airlines, Inc., 62 F.3d 863, 874 (7th Cir. 1995).
We agree with our sister circuits that a district court’s
“failure to reach” certain grounds does not make those
grounds “unsuccessful,” and conclude that the district court
clearly erred in holding that Dr. Ibrahim’s unreached claims
were “unsuccessful.”
2. Related Claims
The district court and the original panel exacerbated this
error in analyzing whether the claims the district court did
not reach were related to her successful claims. The district
court correctly concluded that Dr. Ibrahim’s substantive due
process and APA claims were related to her prevailing
procedural due process claim and allowed recovery of some
of those fees and expenses. Without much analysis,
however, the district court also concluded that her equal
protection and First Amendment claims were not related
50 IBRAHIM V. DHS
“because they involved different evidence, different
theories, and arose from a different alleged course of
conduct.” The three-judge panel stepped into the breach
with its newly devised “mutually exclusive” rationale to
determine that the claims were unrelated because, after trial,
the district court found that Dr. Ibrahim was placed on the
No Fly list due to negligence, and her First Amendment and
equal protection claims alleged intentional discrimination.
The three-judge panel concluded that the two mens rea
requirements were “mutually exclusive.”
But both the district court and the now-withdrawn
opinion failed to follow clear precedent to the contrary. The
Court made clear in Hensley that, while hours spent on an
unsuccessful claim “that is distinct in all respects from [the
plaintiff’s] successful claim” should be excluded, “[w]here
a lawsuit consists of related claims, a plaintiff who has won
substantial relief should not have his attorney’s fee reduced
simply because the district court did not adopt each
contention raised.” 461 U.S. at 440. Construing the Hensley
Court’s statement that claims are “unrelated” if they are
“entirely distinct and separate” from the prevailing claims,
we have held that “related claims involve a common core of
facts or are based on related legal theories.” Webb, 330 F.3d
at 1168 (citations omitted). We do not require commonality
of both facts and law to conclude that claims are related. Id.
Rather “the focus is to be on whether the unsuccessful and
successful claims arose out of the same ‘course of conduct.’
If they didn’t, they are unrelated under Hensley.” Schwarz,
73 F.3d at 903. The three-judge panel’s introduction of the
mutual-exclusivity test is contrary to Supreme Court
IBRAHIM V. DHS 51
precedent, 22 our precedent, 23 and the precedent of every
other circuit interpreting Hensley that has addressed the
question. 24 We are aware of no other court that has adopted
22
See, e.g., Hensley, 461 U.S. at 438 (concluding that, despite the
differences in legal theories and some facts, “[g]iven the interrelated
nature of the facts and legal theories in this case, the District Court did
not err in refusing to apportion the fee award mechanically on the basis
of respondents’ success or failure on particular issues”).
23
See, e.g., Webb, 330 F.3d at 1169 (holding that the plaintiff’s
unsuccessful false arrest claim was “unquestionably” related to the
successful claims for false imprisonment and malicious prosecution, and
allowing his attorney to recover fees for time spent in pursuit of that
claim because “all [of plaintiff’s] claims arose out of a common core of
facts and a common course of conduct: Plaintiff’s arrest, detention, and
prosecution”); see also Thorne v. City of El Segundo, 802 F.2d 1131,
1142 (9th Cir. 1986) (reasoning that a police department clerk-typist’s
claims for discriminatory hiring and unconstitutionally obtained
information could be related because they both concerned a polygraph
interview she underwent during which the department discussed her
sexual history); cf. Schwarz, 73 F.3d at 902–04 (determining that an
employee’s claims of employment discrimination against offices in
Phoenix, Arizona and Portland, Oregon were distinct because they were
predicated on independently discriminatory conduct by different actors,
relating to different employment positions, in different states).
24
See, e.g., Murphy v. Smith, 864 F.3d 583, 586 (7th Cir. 2017)
(“Where claims are closely related, however, a plaintiff who obtains
excellent results should recover a fully compensatory fee even if he did
not prevail on every contention in the lawsuit or if a court rejected or did
not reach certain grounds supporting the excellent result.” (citation
omitted)); Sakhawati v. Lynch, 839 F.3d 476, 480 (6th Cir. 2016)
(declining to reduce fees where all of the claims pertained to one asylum
application and related evidence); SecurityPoint Holdings, Inc. v.
Transp. Sec. Admin., 836 F.3d 32, 41 (D.C. Cir. 2016) (“We believe that
[the plaintiff’s] petition for review presented only one claim for relief—
that TSA’s denial of the cease-and-desist request was unlawful and must
be set aside. Its assertion of several distinct grounds does not create
multiple claims. But even if we treated the various grounds as separate
52 IBRAHIM V. DHS
claims, they are related in the sense meant by Hensley.” (citation
omitted)); Wal-Mart Stores, Inc. v. Barton, 223 F.3d 770, 773 (8th Cir.
2000) (applying Hensley to 42 U.S.C. § 2000e-5(k) and finding that the
plaintiff’s “state claims of assault and battery, outrage, and negligent
retention shared a common core of facts with her Title VII claims, all of
which arose from [the defendant’s] alleged sexual harassment of [the
plaintiff]”); United States v. Jones, 125 F.3d 1418, 1430 (11th Cir. 1997)
(“[U]nder Hensley, a plaintiff who has prevailed against the United
States on one claim may recover for all the hours reasonably expended
on the litigation even though he or she failed to prevail on other claims
involving a common core of facts or related legal theories.”); Jane L. v.
Bangerter, 61 F.3d 1505, 1512 (10th Cir. 1995) (“We have refused to
permit the reduction of an attorneys fee request if successful and
unsuccessful claims are based on a ‘common core of facts.’ . . . Claims
are also related to each other if based on ‘related legal theories.’”
(citations omitted)); Keely v. Merit Sys. Prot. Bd., 793 F.2d 1273, 1275–
76 (Fed. Cir. 1986) (rejecting the government’s argument that the court
should reduce attorneys’ fees and individually evaluate each of the
plaintiff’s separate arguments where the plaintiff only prevailed on one);
Citizens Council of Del. Cty. v. Brinegar, 741 F.2d 584, 596 (3d Cir.
1984) (concluding that “it is clear that there was a sufficient
interrelationship among the essential claims advanced by the plaintiff in
the course of the litigation that the district court was not required to
apportion fees based on the success or failure of any particular legal
argument advanced by the plaintiffs”); cf. Paris v. U.S. Dep’t of Hous.
& Urban Dev., 988 F.2d 236, 240 (1st Cir. 1993) (concluding, in the
context of analyzing a related provision of the Fair Housing Act, that if
the case involves what is essentially a single claim arising from “a
common nucleus of operative fact,” and the plaintiff advances separate
legal theories that “are but different statutory avenues to the same goal,”
then all of the time should be compensable), overruled on other grounds
by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &
Human Res., 532 U.S. 598 (2001).
Only the Second Circuit has interpreted Hensley to allow the
lodestar reductions in cases where multiple claims involve a common
nucleus of fact. Kassim v. City of Schenectady, 415 F.3d 246, 256 (2d
Cir. 2005) (“[A] district judge’s authority to reduce the fee awarded to a
prevailing plaintiff below the lodestar by reason of the plaintiff’s ‘partial
or limited success’ is not restricted . . . to cases of multiple discrete
IBRAHIM V. DHS 53
the mutual-exclusivity test, and we now disavow its use as a
standard for relatedness.
All of Dr. Ibrahim’s claims arose from a “common
course of conduct” and are therefore related under Hensley.
See Webb, 330 F.3d at 1169. The First Amended Complaint
at bottom was a challenge to “defendants’ administration,
management, and implementation of the ‘No-Fly List.’”
Specifically, Dr. Ibrahim alleged that the manner in which
the government created, maintained, updated, and
disseminated the No Fly list led to the humiliating treatment
she experienced at SFO in January 2005 and afterwards, as
she was unable to learn whether she was on or off the list or
why she was placed there in the first place. She alleged
several alternative theories for this treatment, five of which
ultimately went to trial against the federal government. That
the government’s actions arose from negligence or
unconstitutional animus could not have been known until the
case was tried, and we still do not know whether, in addition
to Agent Kelley’s negligence in placing her on the No Fly
list, the government’s initial interest in Dr. Ibrahim stemmed
from its allegedly heightened interest in foreign students
from Muslim countries here on U.S. student visas, 25 or her
theories . . . .”). The Fourth and Fifth Circuits have not yet reached this
issue. See Vaughns by Vaughns v. Bd. of Educ. of Prince George’s Cty.,
770 F.2d 1244, 1245 (4th Cir. 1985) (affirming the district court’s fee
determination based on the standard of review, and not reaching whether
its relatedness analysis, which focused on whether the claims arose from
a common course of conduct, was accurate).
25
In opening argument at trial, Dr. Ibrahim’s attorney Elizabeth
Pipkin stated:
In another Homeland Security presidential directive,
the president calls for the end of abuse of student visas
54 IBRAHIM V. DHS
husband’s recent visit, or her regular attendance at a mosque,
or her involvement in the Islamic Society of Stanford
University, which, if true, would have shown discriminatory
intent. And because the district court did not reach the First
Amendment and equal protection claims, we will never
know whether placement on the TSDB was a result of
discrimination on the basis of her race, religion, country of
origin, or association with Muslims and Muslim groups.
There is no question that all of these claims arise from
the government’s common course of conduct toward Dr.
Ibrahim. To hold otherwise would ignore the realities of
lawyering. As here, the key question in a lawsuit is often not
what happened—but why. Before the litigation begins and
while it is ongoing, the plaintiff and her lawyers cannot
know for sure why someone else did something, but may, as
here, have evidence suggesting various possibilities. So, as
here, the plaintiff raises alternative claims and theories as to
and increased the scrutiny of foreign students during
the time that Dr. Ibrahim was studying at Stanford. In
the months prior to the November 2004 presidential
election and continuing up until the inauguration, the
government ramped up its efforts to interrogate
Muslims in America in a national dragnet called the
October Plan, or Operation Front Line.
The government’s decision to target foreign students
had a strong effect on the Muslim student community
at Stanford. That community emailed its members,
including Dr. Ibrahim, to advise them that there may
be an increased likelihood that law enforcement would
contact them and that if they were contacted, they
should cooperate.
The district court never made a factual finding regarding whether this
allegation was true.
IBRAHIM V. DHS 55
why something was done, some of which may be ultimately
inconsistent, with regard to a single set of facts. The
plaintiff’s claims are then tested by dispositive motions,
discovery, and perhaps (as happened here) trial. The fact
that one claim or theory is eventually determined to be true
does not mean that the claims were unrelated to one another.
It is common to plead that a defendant committed some
act “intentionally, knowingly, or recklessly,” or
simultaneously to bring different claims premised on distinct
mental states. This widely accepted litigation strategy is
accommodated by the clear standard pronounced by the
Supreme Court and previously applied by our court, which
focuses on whether the claims are premised on an “entirely
distinct and separate” set of facts, not whether they are based
on different “mental states.” The analysis in the now-
withdrawn opinion shows that had it applied the correct
standard, it would have recognized that all of Dr. Ibrahim’s
claims were based on the same set of facts—the placement
of Dr. Ibrahim’s name on the government’s watchlists—
regardless of what “mental state” was required to prove each
particular claim. Ibrahim III, 835 F.3d at 1063 (“[I]f the
government negligently placed [Dr.] Ibrahim on its
watchlists because it failed to properly fill out a form, then it
could not at the same time have intentionally placed [Dr.]
Ibrahim on the list based on constitutionally protected
attributes [Dr.] Ibrahim possesses, and vice versa.”).
Allowing hindsight to creep in to fee awards also would
put lawyers in an untenable ethical position. Res judicata
bars claims that could have been raised in an earlier litigation
that arise out of the same “transactional nucleus of facts.”
Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708,
714 (9th Cir. 2001) (internal quotation marks and citation
omitted). Ethical obligations—or perhaps more likely, the
56 IBRAHIM V. DHS
specter of malpractice liability—thus require a lawyer to
bring all reasonably related, viable claims in a single
action. 26 But the three-judge panel’s “mutually exclusive”
26
Our sister circuits have recognized the difficult task facing
lawyers navigating the complexities of civil rights litigation. The D.C.
Circuit, for example, has emphasized that
[a] lawyer who wins full relief for her client on one of
several related claims . . . is not apt to be criticized
because the court failed to reach some of the grounds,
or even ruled against the client on them. . . . After the
fact, it is of course easier to identify which arguments
were winners and which were losers and state
forcefully how an attorney’s time could have been
better spent. But litigation is not an exact science. In
some cases, the lawyer’s flagship argument may not
carry the day, while the court embraces a secondary
argument the lawyer rated less favorably. That is
precisely why lawyers raise alternative grounds—a
practice which is explicitly sanctioned by our Rules of
Civil Procedure.
Goos v. Nat’l Ass’n of Realtors, 68 F.3d 1380, 1386 (D.C. Cir. 1995);
see also id. at 1384–86.
The Seventh Circuit similarly has rejected the panel’s ex post
approach:
For tactical reasons and out of caution lawyers often
try to state their client’s claim in a number of different
ways, some of which may fall by the wayside as the
litigation proceeds. The lawyer has no right to
advance a theory that is completely groundless or has
no factual basis, but if he presents a congeries of
theories each legally and factually plausible, he is not
to be penalized just because some, or even all but one,
are rejected, provided that the one or ones that succeed
give him all that he reasonably could have asked for.
IBRAHIM V. DHS 57
rule raises the possibility that some fraction (perhaps a
substantial one) of these reasonably related, ethically
compelled claims, which a lawyer must research and litigate,
will be excluded from a fee award.
Dr. Ibrahim’s lawyers may have violated
their ethical duties and risked malpractice if
they had failed to bring all claims that their
client could present in good faith. See Model
Rules of Prof’l Conduct r. 1.3 cmt. (Am. Bar
Ass’n 2016) (“A lawyer should pursue a
matter on behalf of a client despite
opposition, obstruction or personal
inconvenience to the lawyer, and take
whatever lawful and ethical measures are
required to vindicate a client’s cause or
endeavor.”). Dr. Ibrahim and her lawyers
faced an uphill battle. The government
vigorously defended this case, and Dr.
Ibrahim did not have access to meaningful
discovery until a few months before trial,
after years of litigation and two appeals—she
was fighting blind against the Many-Faced
Lenard v. Argento, 808 F.2d 1242, 1245–46 (7th Cir. 1987). Other
circuits are in accord. See, e.g., Jordan v. City of Cleveland, 464 F.3d
584, 604 (6th Cir. 2006) (“[L]itigation is not an ‘exact science’: Lawyers
cannot preordain which claims will carry the day and which will be
treated less favorably.”); Robinson v. City of Edmond, 160 F.3d 1275,
1283 (10th Cir. 1998) (“Litigants should be given the breathing room to
raise alternative legal grounds without fear that merely raising an
alternative theory will threaten the attorney’s subsequent
compensation.”).
58 IBRAHIM V. DHS
Bureaucratic God. 27 And as demonstrated by
the complex and longstanding procedural
history, it was not even clear that Dr. Ibrahim
could advance the case beyond the dismissal
stage.
Applying the correct “common course of conduct” test
to Dr. Ibrahim’s claims for procedural and substantive due
process, violations of her First Amendment and equal
protection rights and the APA, we conclude that Dr. Ibrahim
meets the first prong of Hensley. All of Dr. Ibrahim’s claims
arose from her wrongful placement on the No Fly list, and
are therefore related. Fees for each of these claims are thus
recoverable. All of these claims derive from the
government’s interest in Dr. Ibrahim’s activities, which led
to her placement on the No Fly list, her placement on and off
various other watchlists (which the district court deemed
“Kafkaesque”), her attempts to learn why she was on the No
Fly list, her attempts to get herself removed from the No Fly
list, and the government’s intransigence in setting the record
straight for almost a decade. As the district court found, this
treatment had a “palpable impact, leading to the humiliation,
cuffing, and incarceration of an innocent and incapacitated
air traveler.” Dr. Ibrahim’s “litany of troubles” flow directly
from her erroneous placement on the No Fly list, as do all of
the claims that went to trial. None of the claims was distinct
or separable from another, and each claim sought the same
relief Dr. Ibrahim ultimately obtained.
27
See Game of Thrones: The Red Woman (Home Box Office, Inc.
broadcast Apr. 24, 2016).
IBRAHIM V. DHS 59
3. Level of Success
Dr. Ibrahim also satisfied Hensley’s second prong
because she “achieved a level of success that makes the
hours reasonably expended a satisfactory basis for making a
fee award.” Sorenson, 239 F.3d at 1147 (internal
punctuation omitted) (quoting Hensley, 461 U.S. at 434).
The district court found that Dr. Ibrahim had only “limited”
success. We disagree.
The achievement of Dr. Ibrahim and her attorneys in
successfully challenging her No Fly list placement and
forcing the government to fix its error was not just
“excellent,” but extraordinary. Hensley, 461 U.S. at 435.
Although this is not a class action, and thus we assess Dr.
Ibrahim’s individual success, the pathbreaking nature of her
lawsuit underscores her achievement. Dr. Ibrahim was the
first person ever to force the government to admit a terrorist
watchlisting mistake; to obtain significant discovery
regarding how the federal watchlisting system works; to
proceed to trial regarding a watchlisting mistake; to force the
government to trace and correct all erroneous records in its
customer watchlists and databases; to require the
government to inform a watchlisted individual of her TSDB
status; and to admit that it has secret exceptions to the
watchlisting reasonable suspicion standard. Dr. Ibrahim, in
her first appeal to our court, established that district courts
have jurisdiction over challenges to placement on terrorist
watchlists, including the No Fly list. Ibrahim I, 538 F.3d at
1254–57. In her second appeal, she established that even
aliens who voluntarily depart from the U.S. have standing to
bring constitutional claims when they have had a significant
voluntary connection with the U.S. Ibrahim II, 669 F.3d at
993–94. Moreover, on her journey, Dr. Ibrahim established
important principles of law, benefiting future individuals
60 IBRAHIM V. DHS
wrongfully placed on government watchlists. Previously,
most such challenges failed at the pleading stage. See, e.g.,
Shearson v. Holder, 725 F.3d 588 (6th Cir. 2013); Rahman
v. Chertoff, No. 05 C 3761, 2010 WL 1335434 (N.D. Ill.
Mar. 31, 2010); Scherfen v. U.S. Dep’t of Homeland Sec.,
No. 3:CV-08-1554, 2010 WL 456784 (M.D. Penn. Feb. 2,
2010); Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119
(W.D. Wash. 2005).
Dr. Ibrahim’s victory affected more than just her case—
it affected the way all individuals can contest their placement
on these watchlists. 28 The EAJA
rests on the premise that a party who chooses
to litigate an issue against the Government is
not only representing his or her own vested
interest but is also refining and formulating
public policy. An adjudication or civil action
provides a concrete, adversarial test of
Government regulation and thereby insures
the legitimacy and fairness of the law.
Escobar Ruiz v. I.N.S., 813 F.2d 283, 288 (9th Cir. 1987)
(quoting H.R. Rep. No. 1418, at 10 (1980)). Dr. Ibrahim
refined federal watchlisting policy by creating a roadmap for
other similarly situated plaintiffs to seek judicial redress for
alleged wrongful placement on government watchlists. 29
28
The government has since changed its policy regarding contesting
placement on the No Fly list. It now allows certain categories of
individuals to challenge their No Fly list status.
29
For example, in Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or.
2014), where U.S. citizens and lawful permanent residents challenged
their allegedly wrongful placement on the No Fly list, the district court
IBRAHIM V. DHS 61
The significance of Dr. Ibrahim’s roadmap cannot be
overstated. Any person could have the misfortune of being
mistakenly placed on a government watchlist, 30 and the
consequences are severe. 31 Placement on the No Fly list, if
held at the summary judgment stage that the DHS Traveler Redress
Inquiry Program process “falls far short of satisfying the requirements of
due process,” and that “the absence of any meaningful procedures to
afford Plaintiffs the opportunity to contest their placement on the No-Fly
List violates Plaintiffs’ rights to procedural due process.” Id. at 1161. In
evaluating the procedural due process factors from Mathews v. Eldridge,
424 U.S. 319 (1976), the Latif court cited to Dr. Ibrahim’s case, the only
available case involving a due process challenge to watchlisting
procedures, to find that the plaintiffs had been deprived of their liberty
interests in travel, and that the DHS redress process contains a high risk
of erroneous deprivation of constitutionally-protected interests. 28 F.
Supp. 3d at 1148, 1152–53. Today, relief from No Fly list errors is
widely recognized as available. See, e.g., Murtaza Hussain, How a
Young American Escaped the No Fly List, Intercept (Jan. 21, 2016,
4:30 AM), https://theintercept.com/2016/01/21/how-a-young-american-
escaped-the-No-Fly-list/.
30
As of 2014, it was reported that there are 680,000 individuals
listed in the TSDB and 47,000 individuals listed on the No Fly list, and
that these lists are littered with errors. See Ibrahim II, 669 F.3d at 990
(noting that there are significant numbers of erroneous placements on the
federal watchlists).
31
Placement on the No Fly list can also affect an individual’s visa
eligibility, lead to arrest and temporary incarceration, and be considered
in the probable cause inquiry of a bail determination. See United States
v. Duque, No. CR-09-265-D, 2009 WL 3698127, at *5 (W.D. Okla. Nov.
2, 2009) (describing presence on the VGTOF as part of “officers’
collective knowledge” reasonably used to determine probable cause for
an arrest). What is more, “[the U.S. government] shares the TSDB
[watchlisting database] with 22 foreign governments,” so there are
doubtless international repercussions even if a listed person never tries
to enter the United States, fly over U.S. airspace, or use a U.S. carrier.
Ibrahim II, 669 F.3d at 993.
62 IBRAHIM V. DHS
left unchanged, prevents an individual from ever boarding
an airplane that touches the vast expanse of U.S. airspace.
Travel by air has become a normal part of our lives, whether
for work, vacations, funerals, weddings, or to visit friends
and family. In 2017 alone, there were 728 million airline
passengers in the United States. 32 It is debilitating to lose
the option to fly to one’s intended destination. Today, those
misplaced on the No Fly list can contest that placement, and,
if misplaced, regain their right to flight. See Saenz v. Roe,
526 U.S. 489, 498 (1999) (“[T]he ‘constitutional right to
travel from one State to another’ is firmly embedded in our
jurisprudence.” (quoting United States v. Guest, 383 U.S.
745, 757 (1966))).
A full award of attorneys’ fees here is consistent with the
EAJA’s goal of creating a level playing field in cases in
which there is an imbalance of power and resources. “The
EAJA grew out of a concern for the unequal position of the
individual vis à vis an insensitive and ever-expanding
governmental bureaucracy. The House Report expresses
concern about the fact that . . . the government with its
greater resources and expertise can in effect coerce
compliance with its position.” Escobar Ruiz, 813 F.2d at
288 (internal quotation marks and citation omitted). Dr.
Ibrahim—a professor and person of ordinary means—did
Dr. Ibrahim suffered these consequences. She was deprived of her
right to travel, Kent v. Dulles, 357 U.S. 116, 125 (1958): she was unable
to return to Stanford to pursue her degree; forced to leave the United
States permanently, without warning, after living here for thirteen years;
and not allowed to return to testify at her own trial. She was arrested,
Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004), and humiliated, Paul v.
Davis, 424 U.S. 693, 701, 711 (1976).
32
See Airline Activity: National Summary (U.S. Flights), Bureau
Transp. Stats., https://www.transtats.bts.gov/ (last visited July 26, 2018).
IBRAHIM V. DHS 63
not have the resources to pay an attorney to pursue her
claims, which ultimately cost more than $3.6 million dollars
to litigate. And the small seventeen-lawyer law firm that
represented her, McManis Faulkner, had similarly limited
resources, but, when others refused, they agreed to take on
her case, uncertain whether they would ever be
compensated. On the other side of the table was the
government and its virtually unlimited resources. The
government had a team of twenty-six lawyers—more
lawyers than McManis Faulkner employed—and spent at
least 13,400 hours—in other words, 558 days of one person
working 24 hours a day—vigorously defending this
litigation.
Accordingly, we find that Dr. Ibrahim achieved excellent
results and is therefore entitled to reasonable fees consistent
with that outcome.
C. Bad Faith
Generally, attorneys’ fees are capped under the EAJA at
$125 per hour. 28 U.S.C. § 2412(d)(2)(A)(ii). The EAJA
provides, however, that “[t]he United States shall be liable
for such fees and expenses to the same extent that any other
party would be liable under the common law.” 28 U.S.C.
§ 2412(b). Thus, under the common law a court may assess
attorneys’ fees against the government if it has “acted in bad
faith, vexatiously, wantonly, or for oppressive reasons.”
Rodriguez v. United States, 542 F.3d 704, 709 (9th Cir.
2008) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45–
46 (1991)). “[W]e hold the government to the same standard
of good faith that we demand of all non-governmental
parties.” Id. The purpose of such an award is to “deter
abusive litigation in the future, thereby avoiding harassment
and protecting the integrity of the judicial process.”
Copeland v. Martinez, 603 F.2d 981, 984 (D.C. Cir. 1979).
64 IBRAHIM V. DHS
“The district court may award attorney fees at market rates
for the entire course of litigation, including time spent
preparing, defending, and appealing the two awards of
attorney fees, if it finds that the fees incurred during the
various phases of litigation are in some way traceable to the
[government’s] bad faith.” Brown v. Sullivan, 916 F.2d 492,
497 (9th Cir. 1990). And in evaluating whether the
government acted in bad faith, we may examine the
government’s actions that precipitated the litigation, as well
as the litigation itself. Rawlings v. Heckler, 725 F.2d 1192,
1195–96 (9th Cir. 1984); see also Hall v. Cole, 412 U.S. 1,
15 (1973) (concluding that “the dilatory action of the union
and its officers” in expelling an individual from the union
following his resolutions unsuccessfully condemning union
management’s alleged undemocratic and short sighted
policies constituted bad faith (internal quotation marks and
citation omitted)); Dogherra v. Safeway Stores, Inc.,
679 F.2d 1293, 1298 (9th Cir. 1982) (concluding that an
employer would have acted in bad faith if it pursued a
defense of an action based on a lie).
“A finding of bad faith is warranted where an attorney
knowingly or recklessly raises a frivolous argument, or
argues a meritorious claim for the purpose of harassing an
opponent.” Primus Auto. Fin. Servs., Inc. v. Batarse,
115 F.3d 644, 649 (9th Cir. 1997) (internal quotation marks
and citation omitted). “Mere recklessness does not alone
constitute bad faith; rather, an award of attorney’s fees is
justified when reckless conduct is combined with an
additional factor such as frivolousness, harassment, or an
improper purpose.” Rodriguez, 542 F.3d at 709 (internal
quotation marks omitted) (quoting Fink v. Gomez, 239 F.3d
989, 993–94 (9th Cir. 2001)). It is also shown when litigants
disregard the judicial process. Brown, 916 F.2d at 496
(concluding that the “cumulative effect” of the Appeals
IBRAHIM V. DHS 65
Council’s review of a claim for social security benefits,
including the “failure to review a tape of an ALJ’s hearing,
a statutory duty, and other acts that caused delay and
necessitated the filing and hearing of additional motions,
viz., the Secretary’s delay in producing documents and in
transcribing the tape” constituted bad faith); see also Octane
Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct.
1749, 1758 (2014) (allowing fee-shifting for willful
disobedience of a court’s order); Beaudry Motor Co. v. Abko
Props., Inc., 780 F.2d 751, 756 (9th Cir. 1986) (bringing a
case barred by the statute of limitations); Toombs v. Leone,
777 F.2d 465, 471–72 (9th Cir. 1985) (deliberately failing to
comply with local rules regarding exchange of exhibits);
Int’l Union of Petroleum & Indus. Workers v. W. Indus.
Maint., Inc., 707 F.2d 425, 428–29 (9th Cir. 1983) (refusing
to abide by arbitrator’s award).
Though the district court cited some of this relevant case
law, including Rodriguez, Chambers, and Brown, it
erroneously applied a piecemeal approach to its bad faith
determination in conflict with the cases it cited. See
Rodriguez, 542 F.3d at 712. We have long established that
to make a bad faith determination, we must review the
totality of the government’s conduct. See Brown, 916 F.2d
at 496; see also Rawlings, 725 F.2d at 1196. However, “it is
unnecessary to find that every aspect of a case is litigated by
a party in bad faith in order to find bad faith by that party.”
Rodriguez, 542 F.3d at 712.
The district court clearly erred by failing to consider the
totality of the government’s conduct, particularly its
comportment after discovering Agent Kelley’s error. See
Mendenhall v. Nat’l Transp. Safety Bd., 92 F.3d 871 (9th Cir.
66 IBRAHIM V. DHS
1996). 33 In Mendenhall, we held that a government agency,
there the FAA, acted in bad faith, thereby allowing the
prevailing party, Mendenhall, to recover fees at a reasonable
market rate. We held that “[t]he moment the FAA
acknowledged” that its complaint against her was baseless,
“the agency was no longer justified in pursuing its action.”
Id. at 877. “The agency’s continuation of an action it knew
to be baseless . . . is a prime example of bad faith.” Id.
(internal quotation marks omitted) (quoting Brown, 916 F.2d
at 495–96).
The only post-litigation agency conduct that the district
court considered was whether the government obstructed Dr.
Ibrahim or her daughter, Rafeah, from appearing at trial.
The court unreasonably concluded, at least with respect to
Rafeah, that there was no evidence that the government did
so. That conclusion by the district court is “without support
in inferences that may be drawn from the facts in the record”
and is thus clearly erroneous. Crittenden v. Chappell,
804 F.3d 998, 1012 (9th Cir. 2015). Dr. Ibrahim’s daughter,
a U.S. citizen with a U.S. passport, was flagged by the
33
The district court made no findings as to whether the agencies
acted in bad faith before litigation, and we do not have a record basis
upon which to consider this argument. As the district court speculated,
however, the government’s initial interest in Dr. Ibrahim may have
rested on shaky constitutional grounds because it may have been
motivated by racial or religious animus. Dr. Ibrahim alleged that, at the
time Agent Kelley first investigated Dr. Ibrahim for potential
watchlisting placement, the government had a heightened interest in
foreign students like her who were in the United States from Muslim
countries on U.S. student visas. Stanford University had specifically
contacted these students, warning them of the government’s potential
interest. However, because the district court did not reach this issue
despite having more familiarity with the extensive record, we cannot
conclude that the government’s initial interest in Dr. Ibrahim was in bad
faith.
IBRAHIM V. DHS 67
National Targeting Center (NTC) as potentially inadmissible
to the United States. NTC determined that she had been
listed in the TSDB database by other government entities as
an individual about whom those agencies possessed
“substantive ‘derogatory’ information” that “may be
relevant to an admissibility determination under the
Immigration and Nationality Act.” But, as a U.S. citizen, Dr.
Ibrahim’s daughter clearly was not subject to the INA.
Although Dr. Ibrahim’s daughter carried a U.S. passport
and U.S. Customs and Border Protection recognized that she
appeared to be a U.S. citizen, NTC requested that Philippine
Airlines perform additional screening of her in the following
e-mail:
[Subject line:] POSSIBLE NO BOARD
REQUESTPNR WNDYJS
[Body:] NOTICE TO AIR CARRIER The
[DHS and U.S. Customs and Border
Protection] recommends the airline to contact
[the carrier liaison group] when the following
passenger shows up to check in . . . .
After Philippine Airlines received this notice, Rafeah was
not permitted to board her flight, causing her to miss her
mother’s trial, where she had been listed as a witness. The
government did not update the TSDB to reflect that Dr.
Ibrahim’s daughter was a U.S. citizen until after it had
purportedly investigated the situation.
The district court also disregarded the government’s
response to Agent Kelley’s error once the error was
discovered. On remand, the district court should take into
account in its analysis of bad faith the government’s conduct
together with the consequences Dr. Ibrahim suffered as a
68 IBRAHIM V. DHS
result. For example, the district court failed to consider the
February 2006 order to remove Dr. Ibrahim from all
watchlist databases because she had “no nexus to terrorism.”
Despite this order, the government continued to place Dr.
Ibrahim on and off federal watchlists, providing no
reasonable explanation for Dr. Ibrahim’s never-ending
transitions in watchlist status. Further, the only justification
for her continued watchlist placement is claimed to be a state
secret. This assertion begs the question: Why was Dr.
Ibrahim added to any watchlist once the government
determined she was not a threat? Moreover, was there any
justification for her seemingly random addition to and
removal from watchlists? The district court should also
consider the government’s failure to remedy its own error
until being ordered to do so and its failure to inform Agent
Kelley of his mistake for eight years. 34
The district court also wrongly rejected as a basis for bad
faith the government’s numerous requests for dismissal on
standing grounds post-Ibrahim II, where we determined
unequivocally that Dr. Ibrahim had Article III standing even
though she voluntarily left the United States. The
government knowingly pursued baseless standing arguments
in its third motion to dismiss, its motion for summary
judgment, statements during trial, and post-trial proposed
findings of fact and conclusions of law. The district court
found that the government’s position was “unreasonable,”
particularly after it “continue[d] to seek dismissal based on
34
Even after Agent Kelley learned of his mistake, Agent Kelley
never reviewed his old files to see if he had accidentally nominated
others to the No Fly list in the hope it was a one-time mistake. But Agent
Kelley’s hope was not grounded in reality. If Agent Kelley nominated
Dr. Ibrahim because he misread the form, this may well not have been a
one-time event—he likely would have made the same mistake other
times he used the same form.
IBRAHIM V. DHS 69
lack of standing in the face of our court of appeal’s
decision,” but it did not account for this unreasonableness in
its bad faith determination. See Ibrahim II, 669 F.3d at 997.
This was contrary to our longstanding precedent that when
an attorney knowingly or recklessly raises frivolous
arguments, a finding of bad faith is warranted. Fink,
239 F.3d at 993–94; see also Optyl Eyewear Fashion Int’l
Corp. v. Style Cos., 760 F.2d 1045, 1052 (9th Cir. 1985). As
the district court acknowledged, “the government should
have sought review by the United States Supreme Court,”
rather than to repeatedly assert an argument for dismissal it
knew to be baseless.
Although the district court concluded that “the
government was wrong to assure all that it would not rely on
state-secrets evidence and then reverse course and seek
dismissal at summary judgment,” it incorrectly found that
the error was not knowingly or recklessly made. The
government falsely represented to both the district court and
to Dr. Ibrahim’s counsel—orally in court and in written
filings—that it would not rely on evidence withheld on the
basis of a privilege to “prevail in this action.” 35 And yet,
after these representations, the government raised the very
35
The government explicitly stated in a response to a court order
asking the government to confirm its position on this very question:
Defendants affirm that they will not rely on any
information they have withheld on grounds of
privilege from Plaintiff in response to a discovery
request in this case. Defendants are mindful of the
Court’s December 20, 2012 ruling (Dkt. [No.] 399)
that the Government may not affirmatively seek to
prevail in this action based upon information that has
been withheld on grounds of privilege, and have acted
in a manner consistent with that ruling in both the
assertion of privilege and summary judgment briefing.
70 IBRAHIM V. DHS
argument it had promised to forego. This is precisely the
type of “abusive litigation” disavowed in the EAJA, which
is focused on “protecting the integrity of the judicial
process.” Copeland, 603 F.2d at 984 (concluding that the
government was entitled to bad faith fees where the plaintiff
brought a frivolous suit under Title VII of the Civil Rights
Act of 1964 because the purpose of a fee award under the
bad faith exception includes “protecting the integrity of the
judicial process”).
The district court also clearly erred in concluding the
government’s privilege assertions were made in good faith
by considering only the merits of the privilege arguments
themselves (“some were upheld, some were overruled”).
The district court disregarded the government’s stubborn
refusal to produce discovery even after the district court
ordered it produced. But “willful disobedience of a court
order” supports a bad faith finding. Octane Fitness, LLC,
134 S. Ct. at 1758 (citation omitted); see also Hutto v.
Finney, 437 U.S. 678, 689 n.14 (1978) (noting that a court
can “award attorney’s fees against a party who shows bad
faith by delaying or disrupting the litigation or by hampering
enforcement of a court order”). Here, the government
refused to produce evidence designated “sensitive security
information” (SSI), even after Dr. Ibrahim’s attorneys
obtained the requisite security clearance and the court
ordered the government to produce discovery. Contrary to
its April 2014 bad faith finding, the district court itself, in a
December 20, 2012 order, admonished the government for
its “persistent and stubborn refusal to follow the statute” that
IBRAHIM V. DHS 71
required the government to produce this information in these
circumstances. 36
The district court’s 2012 reprimand had little effect on
the government’s conduct. After this order, the government
continued to drag its feet and refused to produce any
privileged information—which Dr. Ibrahim’s attorneys were
cleared to review—because it wanted to renegotiate an
already-in-place protective order. The district court, noting
its dissatisfaction with the government’s handling of this
litigation in 2013, emphasized that the government had
“once again miss[ed] a deadline to produce materials in this
long-pending action.”
The government also refused to comply with the district
court’s order to produce Dr. Ibrahim’s current watchlist
status until it was compelled to do so. Dr. Ibrahim should
not have been required to pursue a motion to compel to
require the government to produce this information,
especially when the government’s justifications for refusing
to produce it were baseless. The government first argued
that Dr. Ibrahim did not have standing to assert a right to
learn the status of her No Fly list placement—a meritless
reassertion of a settled issue. The government alternatively
argued that her historical watchlist status was irrelevant to
this case—a plainly frivolous contention given that Dr.
36
Dr. Ibrahim also argues that the government acted in bad faith by
giving the district court secret evidence and secret case law. While the
district court ultimately held that the government was not justified in
these ex parte communications, it is not clear that such communications
were so clearly precluded by precedent that the ex parte communications
were outside the bounds of acceptable conduct.
72 IBRAHIM V. DHS
Ibrahim’s watchlist status is at the heart of this dispute.
These actions, too, support a bad faith finding.
On remand, when analyzing the government’s litigation
conduct through a totality of the circumstances lens, the
district court must also consider other relevant conduct,
including the government’s abuse of the discovery
process; 37 interference with the public’s right of access to
trial by making at least ten motions to close the courtroom,
see Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122,
1135 (9th Cir. 2003); accord Globe Newspaper Co. v.
Superior Court, 457 U.S. 596, 606–07 (1982); 38 and misuse
of a summary judgment hearing to discuss tangential issues
unrelated to the merits of the summary judgment motion.
Finally, the district court erred in failing to consider
whether the government’s position as a whole was in good
faith. Though the government may have had a legitimate
basis to defend this litigation initially, whether the
government’s defense of this litigation was ever in good
faith is a different question from whether it was always in
good faith. Once the government discovers that its litigation
position is baseless, it may not continue to defend it.
Mendenhall, 92 F.3d at 877. On remand, the district court
37
For example, the government also made depositions exceedingly
difficult by lodging over 200 objections and instructions not to answer
to questions.
38
“[H]istorically both civil and criminal trials have been
presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555, 580 n.17 (1980) (plurality opinion); see also id. at 596 (Brennan, J.,
concurring in judgment) (emphasizing value of open civil proceedings);
id. at 599 (Stewart, J., concurring in judgment) (remarking that the First
Amendment provides a right of access to civil and criminal trials).
IBRAHIM V. DHS 73
must consider whether the government had a good faith basis
to defend its No Fly list error as the litigation evolved.
In sum, the district court’s ruling that the government did
not act in bad faith was in error because it was incomplete.
The district court focused primarily upon Agent Kelley’s
“unknowing” placement of Dr. Ibrahim’s name on the No
Fly list, which it deemed “the original sin,” rather than
considering the “totality” of the government’s conduct,
“including conduct ‘prelitigation and during trial.’”
Rodriguez, 542 F.3d at 712 (emphasis removed) (citations
omitted); see also Rawlings, 725 F.2d at 1196 (opining that
when evaluating bad faith we must consider the “totality of
the circumstances”). And this conduct should have included
both an analysis of the government agencies’ and its legal
representatives’ conduct. Dr. Ibrahim should not have had
to endure over a decade of contentious litigation, two trips to
the court of appeals, extensive discovery, over 800 docket
entries amounting to many thousands of pages of record, and
a weeklong trial the government precluded her (and her
U.S.-citizen daughter) from attending, only to come full
circle to the government’s concession that she never
belonged on the No Fly list at all—that she is not and never
was a terrorist or threat to airline passenger or civil aviation
security. It should not have taken a court order to require the
government to “cleans[e] and/or correct[] . . . the mistaken
2004 derogatory designation” of Dr. Ibrahim, which had
spread like an insidious virus through numerous government
watchlists.
V.
The district court’s piecemeal award of attorneys’ fees in
this case runs afoul of the Supreme Court’s admonition that
“[a] request for attorney’s fees should not result in a second
major litigation.” Hensley, 461 U.S. at 437. In this request
74 IBRAHIM V. DHS
for attorneys’ fees alone, three courts, both a three-judge
panel of our court and an en banc panel, fifteen judges, and
one special master have had to consider the merits of this
claim while the attorneys’ fees and costs continue to mount.
The district court and original panel’s substantive
determination of issues are precisely the type of “second
major litigation” that the Hensley Court directed us to avoid.
That is not to say that all of the special master’s findings
and recommended fee reductions accepted by the district
court were incorrect. As the Supreme Court noted in
Hensley, consideration of the twelve factors laid out in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,
717–19 (5th Cir. 1974), abrogated on different grounds by
Blanchard v. Bergeron, 489 U.S. 87 (1989), 39 was entirely
appropriate. 461 U.S. at 429–30. For example, the special
master did not err in considering whether there was
duplicative or block billing. However, when revisiting this
case, the fee reductions should not be so pervasive that they
completely eliminate the reasonable fees to which Dr.
Ibrahim’s attorneys are entitled.
When the district court recalculates these fees, the
calculation should acknowledge that Dr. Ibrahim and her
lawyers, facing overwhelming odds, won a groundbreaking
39
The Johnson factors are: (1) the time and labor required; (2) the
novelty and difficulty of the questions; (3) the skill requisite to perform
the legal service properly; (4) the preclusion of other employment;
(5) the customary fee in the community for similar work; (6) the fixed or
contingent nature of the fee; (7) time limitations imposed by the client or
the circumstances; (8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the attorneys; (10) the
“undesirability” of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases. Johnson,
488 F.2d at 717–19.
IBRAHIM V. DHS 75
victory, and that they are entitled to the fees they’ve earned
and the vast majority of fees they requested. Cf. Moreno v.
City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008)
(“The district court’s inquiry must be limited to determining
whether the fees requested by this particular legal team are
justified for the particular work performed and the results
achieved in this particular case.”).
We therefore REVERSE, VACATE the award of
attorneys’ fees, and REMAND to allow the district court to
make a bad faith determination under the correct legal
standard in the first instance, and to re-determine the fee
award in accordance with this opinion.40
40
We do not reach each of the objections to the special master’s
recommendations, as the fee award is vacated, and many of the
objections may be mooted as a result of our opinion, which will require
a substantial redetermination of the fee award, as well as commensurate
costs.
76 IBRAHIM V. DHS
APPENDIX A
Glossary of Acronyms
APA Administrative Procedure Act
CLASS Consular Lookout and Support System
DHS Department of Homeland Security
EAJA Equal Access to Justice Act
FAA Federal Aviation Administration
FBI Federal Bureau of Investigation
HSPD-6 Homeland Security Presidential Directive 6
IBIS Interagency Border Inspection System
INA Immigration and Nationality Act
KSTF Known and Suspected Terrorist File
NCIC National Crime Information Center
NCTC National Counterterrorism Center
NTC National Targeting Center
PIVF Passenger Identity Verification Form
SFO San Francisco International Airport
SSI Sensitive Security Information
Tipoff Australia Counterterrorism Information
TACTICS
Control System
TIDE Terrorist Identities Datamart Environment
TRIP Travel Redress Inquiry Program
TSA Transportation Security Administration
TSC Terrorist Screening Center
TSDB Terrorist Screening Database
IBRAHIM V. DHS 77
TUSCAN Tipoff United States-Canada
VGTO Violent Gang and Terrorist Organization
VGTOF Violent Gang and Terrorist Organization File
78 IBRAHIM V. DHS
CALLAHAN, Circuit Judge, joined by N.R. SMITH and
NGUYEN, Circuit Judges, concurring in part and dissenting
in part:
I agree with the majority that Dr. Ibrahim is the
prevailing party in this case and that the test for substantial
justification is an inclusive one: whether the government’s
position as a whole has a reasonable basis in fact and law. I
further agree that Dr. Ibrahim’s equal protection and First
Amendment claims are sufficiently related to her other
claims such that the district court’s failure to reach those
issues does not justify the district court’s curtailment of
attorneys’ fees. But the majority exceeds our role as an
appellate court by determining in the first instance that the
government’s position was not substantially justified.
Supreme Court precedent requires that we allow the district
court to make that determination on remand. See Pierce v.
Underwood, 487 U.S. 552, 560 (1988). I also dissent from
the majority’s setting aside of the district court’s finding that
the defendants did not proceed in bad faith. Applying the
applicable standard of review, see Rodriguez v. United
States, 542 F.3d 704, 709 (9th Cir. 2008), Dr. Ibrahim has
not shown that the district court committed clear error.
Accordingly, I would affirm the district court’s limitation of
Dr. Ibrahim’s attorneys’ fees to the statutory rate of $125 per
hour set by Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412.
I
Although I agree that substantial justification requires a
single-finding, the majority errs in proceeding to make this
factual determination. In Pierce, the Supreme Court held
that the language in 28 U.S.C. § 2412(d)(1)(A)—that
attorneys’ fees shall be awarded “unless the court finds that
the position of the United States was substantially
IBRAHIM V. DHS 79
justified”—contemplates that “the determination is for the
district court to make and suggests some deference to the
district court.” 487 U.S. at 559. The Court explained why
the district court is in a better position than an appellate court
to make this determination:
To begin with, some of the elements that bear
upon whether the Government’s position
“was substantially justified” may be known
only to the district court. Not infrequently,
the question will turn upon not merely what
was the law, but what was the evidence
regarding the facts. By reason of settlement
conferences and other pretrial activities, the
district court may have insights not conveyed
by the record, into such matters as whether
particular evidence was worthy of being
relied upon, or whether critical facts could
easily have been verified by the Government.
Moreover, even where the district judge’s full
knowledge of the factual setting can be
acquired by the appellate court, that
acquisition will often come at unusual
expense, requiring the court to undertake the
unaccustomed task of reviewing the entire
record, not just to determine whether there
existed the usual minimum support for the
merits determination made by the factfinder
below, but to determine whether urging of the
opposite merits determination was
substantially justified.
Id. at 560 (emphasis in original). The EAJA is materially
indistinguishable from the statute at issue in Pierce, and our
case presents just the type of situation alluded to by the
80 IBRAHIM V. DHS
Supreme Court. The district court has managed this
litigation for twelve years. It is uniquely positioned to
determine based on the totality of the circumstances whether
the government’s position was substantially justified.
Despite its ultimate factual conclusion that “neither the
agencies’ conduct nor the government’s litigation position
was substantially justified” (Maj. Opn. at 46), the majority’s
own description of the litigation shows why the district court
should decide the issue in the first instance. The majority
“ascribe[s] no nefarious motivations to the government”
(Maj. Opn. at 43 n.19) and declines to find that “the
government’s defense of this litigation was unreasonable at
all points of the litigation.” Maj. Opn. at 45 n.20. Later in
its opinion, the majority notes that “[t]hough the government
may have had a legitimate basis to defend this litigation
initially, whether the government’s defense of this litigation
was ever in good faith is a different question from whether
it was always in good faith.” Maj. Opn. at 72. The
majority’s recognition of the complexities of this litigation
illustrates precisely why the issue should be decided in the
first instance by the district court.
As the Supreme Court directed in Pierce, our iteration of
the single-finding requirement compels a remand to the
district court to make that finding in the first place. See
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237
(1995) (“Because our decision today alters the playing field
in some important respects, we think it best to remand the
case to the lower courts for further consideration in light of
the principles we have announced.”). The government
would then have the opportunity to explain its reasons for its
positions and offer evidence in support of its positions, and,
of course, Dr. Ibrahim would be entitled to respond to the
government’s arguments and evidence. See Fisher v. Univ.
IBRAHIM V. DHS 81
of Texas at Austin, 570 U.S. 297, 314 (2013) (noting that
“fairness to the litigants and the courts that heard the case
requires that it be remanded so that the admissions process
can be considered and judged under a correct analysis”).
The district court would then make its independent
determination, which we could then review should either
side take exception. We are not a fact-finding court, and our
feelings concerning the reasonableness of the government’s
overall litigation strategy do not justify our expropriation of
the district court’s responsibility to make such a
determination in the first instance. 1
II
Although the majority correctly notes that a finding of
bad faith permits a market-rate recovery of attorneys’ fees,
in reversing the district court’s finding of no bad faith, the
majority fails to apply, let alone acknowledge, the proper
standard of review. “We review a district court’s finding
regarding a party’s bad faith for clear error.” Rodriguez,
542 F.3d at 709. “A finding is clearly erroneous if it is
(1) illogical, (2) implausible, or (3) without support in
inferences that may be drawn from the facts in the record.”
Crittenden v. Chappell, 804 F.3d 998, 1012 (9th Cir. 2015)
(internal quotation marks omitted) (quoting United States v.
Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)).
The Supreme Court has cautioned that pursuant to Federal
Rule of Civil Procedure 52, “[f]indings of fact shall not be
set aside unless clearly erroneous, and due regard shall be
1
See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573
(1985) (“The reviewing court oversteps the bounds of its duty under
Rule 52(a) if it undertakes to duplicate the role of the lower court.”); see
also S.E.C. v. Rogers, 790 F.2d 1450, 1458 (9th Cir. 1986) (noting that
“as a court of limited review” the Ninth Circuit “must abide by the
clearly erroneous rule when reviewing a district court’s findings.”).
82 IBRAHIM V. DHS
given to the opportunity of the trial court to judge the
credibility of the witnesses.” Anderson, 470 U.S. at 573.
The Supreme Court has counseled:
If the district court’s account of the evidence
is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse
it even though convinced that had it been
sitting as the trier of fact, it would have
weighed the evidence differently. Where
there are two permissible views of the
evidence, the factfinder’s choice between
them cannot be clearly erroneous.
Id. at 573–74.
The majority turns the standard of review on its head by
analyzing and emphasizing the pieces of evidence that it
concludes “support a bad faith finding.” Maj. Opn. at 71–
72; see generally Maj. Opn. at 65–75. But to reverse for
clear error, we should consider whether the district court’s
finding was plausible and not simply identify evidence that
arguably supports a conclusion contrary to the district
court’s determination.
None of the arguments proffered by Dr. Ibrahim support
a finding of clear error. She first argues that there is bad faith
because she was wrongly placed on the watchlist, the
government refused to acknowledge this fact, and the
government continued to oppose her even after it knew its
conduct was wrong. But this argument fails to acknowledge
the evolution of the law—which has been prompted, at least
in part, by this litigation. We now know that Dr. Ibrahim
was placed on the watchlist by the mistake of a single federal
employee. Moreover, at the time Dr. Ibrahim was placed on
the government’s watchlist, there was no uniform standard.
IBRAHIM V. DHS 83
Also, as the three-judge panel observed, “[p]rior to this suit
no court had held a foreign national such as Ibrahim
possessed any right to challenge their placement—mistaken
or not—on the government’s terrorism watchlists.” Ibrahim
v. U.S. Dep’t. of Homeland Sec., 835 F.3d 1048, 1058 (9th
Cir. 2016) (Ibrahim III), reh’g en banc granted, 878 F.3d
703 (9th Cir. 2017). Thus, it was not necessarily bad faith
for the government to assert that Dr. Ibrahim did not possess
such a right. Id. Furthermore, it appears that the government
removed Dr. Ibrahim from the No-Fly List more than a year
prior to Dr. Ibrahim filing this action in 2016. Id.
Second, Dr. Ibrahim asserts that the government’s
raising of its standing defense after Ibrahim v. Dep’t. of
Homeland Security, 669 F.3d 983 (9th Cir. 2012) (Ibrahim
II), demonstrates bad faith. However, the three-judge panel
noted:
Ibrahim fails to point to any evidence
indicating the government reraised standing
as a defense at summary judgment and trial
with vexatious purpose. What’s more, the
government correctly points out that there
was at minimum a colorable argument that
the different procedural phases of the case
rendered their subsequent standing motions
nonfrivolous.
Ibrahim III, 835 F.3d at 1059. Although we held that Dr.
Ibrahim had standing in Ibrahim II, 669 F.3d at 992–94, this
did not preclude the government from seeking to preserve
the issue 2 or from challenging her underlying constitutional
2
The majority asserts that the government should have sought
review of Ibrahim II by the Supreme Court, but as Ibrahim II reversed
84 IBRAHIM V. DHS
claims. See Ibrahim II, 669 F.3d at 997 (noting that we
expressed “no opinion on the validity of the underlying
constitutional claims”).
Third, Dr. Ibrahim’s claim that the government’s
privilege assertions were made in bad faith is not compelling
as the government was successful on many of its privilege
assertions. See Ibrahim III, 835 F.3d at 1059.
Fourth, the three-judge panel noted:
Nor is there any evidence in the record
demonstrating the government prevented
Ibrahim from entering the United States to
offer testimony in this suit, and with respect
to her daughter, Ibrahim fails to explain why
there was any error in the district court’s
determination that the government’s initial
refusal to allow her into the country was
anything but a mistake, and a quickly
corrected one at that.
Id. at 1060. The majority, however, asserts that it was
unreasonable for the district court to conclude that “there
was no evidence that the government” obstructed Dr.
Ibrahim’s daughter from appearing at trial. Maj. Opn. at 66.
But the question is not whether there is evidence that the
government interfered with the daughter’s travel to the
United States, but whether it did so in bad faith. The
majority notes that as a citizen the daughter “was not subject
and remanded for further proceedings, the government could have
decided not to press the issue at that time.
IBRAHIM V. DHS 85
to the INA,” (Maj. Opn. at 67), but the No-Fly List and other
travel restrictions are applicable to citizens as well as others.
Finally, I agree with the three-judge panel that:
Ibrahim’s argument that the district court
erred by making piecemeal bad faith
determinations is unpersuasive. Her sole
authority on point is our decision in
McQuiston v. Marsh, 707 F.2d 1082, 1086
(9th Cir. 1983), superseded by statute as
recognized by Melkonyan v. Sullivan,
501 U.S. 89, 96, 111 S. Ct. 2157, 115 L. Ed. 2d
78 (1991), where we made the unremarkable
observation that “[b]ad faith may be found
either in the action that led to the lawsuit or
in the conduct of the litigation.” She fails,
however, to point to any case where we have
elevated that observation to edict. Rather, we
have consistently required fee awards based
on bad faith to be “traceable” to the conduct
in question. See, e.g., Rodriguez, 542 F.3d at
713. It was therefore proper for the district
court to consider each claimed instance of
bad faith in order to determine whether the
associated fees should be subject to a market-
rate increase.
Ibrahim III, 835 F.3d at 1060.
Of course, we as an en banc panel are free to disagree
with the conclusions drawn by the three-judge panel, but
where, as here, the standard of review is clear error, the fact
that several appellate judges agreed with the district court is
some evidence that the district court’s decision was not clear
error.
86 IBRAHIM V. DHS
Although the majority remanded the issue of bad faith to
the district court for its independent re-assessment of the
issue, as an appellate court we should allow the district
court’s determination of no bad faith to stand unless
appellant shows clear error. Anderson, 470 U.S. at 572;
Rodriguez, 542 F.3d at 709. Because Dr. Ibrahim has not
shown clear error, the district court’s finding of no bad faith
should be affirmed.
III
The majority, having determined that the test for
substantial justification under the EAJA is an inclusive
one—whether the government’s position as a whole has a
reasonable basis in fact and law—gets carried away and
arrogates to itself the determination in the first instance that
the government’s position was not reasonable. However, the
Supreme Court has clearly directed that such a determination
should be made by the district court, Pierce, 487 U.S. at 560,
where the parties will have an opportunity to present
argument and evidence applying our substantial justification
test to the particularities of this litigation. See Fisher,
570 U.S. at 314. And while the majority, by remanding the
bad faith issue to the district court, resisted the temptation to
decide itself whether the government has proceeded in bad
faith, it should have recognized that there was no need for a
remand because Dr. Ibrahim failed to show clear error in the
district court’s holding that the government did not proceed
in bad faith. See Rodriguez, 542 F.3d at 709. Accordingly,
I agree with the majority’s test for substantial justification,
but I dissent from its factual determination in the first
instance that the government’s litigation position was not
justified and from its disturbance of the district court’s
finding that the government did not proceed in bad faith.