912 F.3d 1147
9th Cir.2019Background
- Dr. Rahinah Ibrahim, a former Stanford student, was mistakenly placed on federal terrorist watchlists (including a No Fly designation) after an FBI agent misfilled a nomination form; she was detained in 2005 and has since been unable to return to the U.S. in practice.
- She filed suit in 2006 challenging her watchlist placement and related government conduct; the litigation included two successful Ninth Circuit appeals (jurisdiction and standing) and a weeklong bench trial in 2013 in which the government conceded she posed no threat and the district court ordered corrective relief.
- McManis Faulkner represented Ibrahim pro bono and sought attorneys’ fees and expenses under the Equal Access to Justice Act (EAJA) after she prevailed.
- The district court awarded only a small fraction of requested fees, applying (1) a piecemeal/stage-by-stage review of whether the government’s position was "substantially justified," and (2) reductions for claims the court did not reach as "unsuccessful;" the district court also declined to find government bad faith for market-rate fee relief.
- A three-judge Ninth Circuit panel affirmed in part (adopting a novel “mutual exclusivity” relatedness test) but the court reheard the appeal en banc to clarify EAJA standards.
- The en banc court reversed: it held that the EAJA requires a single, inclusive substantial-justification inquiry (agency action + litigation as a whole), rejected the panel’s mutual-exclusivity approach to relatedness, found Ibrahim achieved "excellent" results making full fees presumptively recoverable, and remanded for the district court to re-evaluate bad-faith and fee reasonableness under the correct standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Proper EAJA substantial-justification test: single inclusive inquiry vs. piecemeal stage-by-stage | Jean requires a single, casewide assessment (agency action + litigation) — district court must evaluate government position "as a whole." | Corbin and stage-specific factors support evaluating justification at distinct stages and apportioning fees. | The en banc court held EAJA requires a single inclusive inquiry (agency action + litigation conduct); the district court erred in its piecemeal, stage-by-stage approach. |
| 2) Are claims that were not reached by the district court "unsuccessful" for fee apportionment? | Unreached alternative claims are not "unsuccessful" where they arise from the same course of conduct; Hensley protects alternative theories. | Because the district court decided on a negligent theory and did not reach intentional/discrimination theories, the unreached First Amendment and equal-protection claims are unrelated/unsuccessful. | The court rejected the panel’s "mutual exclusivity" approach; under Hensley, relatedness asks whether claims arise from a common core of facts — all Ibrahim’s claims were related to the watchlisting conduct, so fees for those claims are recoverable. |
| 3) Did Ibrahim obtain the level of success warranting full fees? (Hensley second prong) | Ibrahim secured substantial, remedial relief (corrections to watchlists, disclosures, recognition of mistake) and produced precedent benefiting similarly situated persons — she achieved "excellent" results. | The government characterized success as limited and sought reductions. | The court held Ibrahim achieved extraordinary/excellent results; hours reasonably expended are a satisfactory basis for fees. |
| 4) Bad-faith exception (market-rate fees): should fees be awarded at market rates due to government misconduct? | Government discovery games, false assurances re: not relying on privileged evidence, repeated meritless standing challenges after appellate rulings, and delays after discovery of the error support bad-faith findings and market-rate fees. | District court found no bad faith; government contends its positions and privilege assertions were legally defensible and not shown to be made in bad faith. | The en banc court found the district court’s bad-faith analysis incomplete (it failed to consider totality of conduct including prelitigation and litigation posture) and remanded so the district court may determine bad faith under the correct legal standard. |
Key Cases Cited
- Commissioner, I.N.S. v. Jean, 496 U.S. 154 (controls EAJA single-inclusive substantial-justification inquiry)
- Hensley v. Eckerhart, 461 U.S. 424 (framework for relatedness and reasonableness of fee awards)
- Pierce v. Underwood, 487 U.S. 552 (standard for what constitutes a "reasonable basis" and deference to district court factfinding on EAJA issues)
- Corbin v. Apfel, 149 F.3d 1051 (9th Cir.) (distinguished — applied to administrative-review contexts; court rejects its piecemeal approach here)
- Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. en banc) (state-secrets framework referenced in assessing government privilege strategy)
- Rodriguez v. United States, 542 F.3d 704 (9th Cir. 2008) (bad-faith fee doctrine; standard for fee awards against government at common law)
- Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250 (9th Cir. 2008) (Ibrahim I) (jurisdiction over watchlist claims)
- Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983 (9th Cir. 2012) (Ibrahim II) (standing for nonimmigrant abroad with substantial U.S. ties)