Ibrahim v. U.S. Dep't of Homeland Sec.

• Decision Date: 02 January 2019
• Docket Number: 14-17272,Nos. 14-16161,s. 14-16161
• Citation: 912 F.3d 1147
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

912 F.3d 1147

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.

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

Filed January 2, 2019

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.

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

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 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, 110 S.Ct. 2316, 110 L.Ed.2d 134 (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, 103 S.Ct. 1933, 76 L.Ed.2d 40 (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 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 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 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...