912 F.3d 1147 (9th Cir. 2019), 14-16161, Ibrahim v. U.S. Department of Homeland Security

Docket Nº:14-16161, 14-17272
Citation:912 F.3d 1147
Opinion Judge:WARDLAW, Circuit Judge:
Party Name:Dr. Rahinah IBRAHIM, an Individual, Plaintiff-Appellant, v. U.S. DEPARTMENT OF HOMELAND SECURITY; Terrorist Screening Center; Federal Bureau of 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 ...
Attorney: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, Washingto...
Judge Panel: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. Partial Concurrence and Partial Dissent...
Case Date:January 02, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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912 F.3d 1147 (9th Cir. 2019)

Dr. Rahinah IBRAHIM, an Individual, Plaintiff-Appellant,

v.

U.S. DEPARTMENT OF HOMELAND SECURITY; Terrorist Screening Center; Federal Bureau of 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; 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.

Nos. 14-16161, 14-17272

United States Court of Appeals, Ninth Circuit

January 2, 2019

Argued and Submitted En Banc March 20, 2018 San Francisco, California

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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.

Appeal from the United States District Court for the Northern District of California, William Alsup, District Judge, Presiding, D.C. No. 3:06-cv-545-WHA

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.

Partial Concurrence and Partial Dissent by Judge Callahan

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, 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 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.

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"

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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...

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