Daley v. Choate, et al.Daley v. Choate, et al.
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:22-CV-03043-RM)
Kyle W. Brenton, Assistant United States Attorney, Denver, Colorado (Matthew T. Kirsch, Acting United States Attorney, Denver, Colorado; Brian M. Boynton, Principal Deputy Assistant Attorney General, William C. Peachey, Director, and Alexa S. White, Trial Attorney, Civil Division, Department of Justice, Washington, D.C., with him on the briefs), for Respondents-Appellants.
John V. Hoover of Arnold & Porter Kaye Scholer LLP, Washington, D.C. (Sean A. Mirski, R. Stanton Jones, Andrew T. Tutt, and Casey Corcoran of Arnold & Porter Kaye Scholer LLP, Washington, D.C.; William T. Sharon and Nicole L. Masiello of Arnold & Porter Kaye Scholer LLP, New York, New York; Laura P. Lunn and Laura L. Shoaps of Rocky Mountain Immigrant Advocacy Network, Westminster, Colorado, with him on the brief), for Petitioner-Appellee.
Jeremy M. Christiansen, Matt Gregory, and Hayley N. Lawrence of Gibson, Dunn & Crutcher LLP, Washington, D.C., filed an amicus curiae brief for Habeas and Immigration Law Scholars.
Peter Cameron Alfredson and Amelia Christine Dagen of Amica Center for Immigrant Rights, Washington, D.C., filed an amicus curiae brief for Amica Center for Immigrant Rights.
Charity E. Lee and Sarah E. Libowsky of Cleary Gottlieb Steen & Hamilton LLP, New York, New York, filed an amicus curiae brief for The National
Before HOLMES, Chief Judge, KELLY, and FEDERICO, Circuit Judges.
FEDERICO, Circuit Judge.
After Eva Daley successfully petitioned for habeas relief from her immigration detention, she moved for attorneys’ fees under the Equal Access to Justice Act (EAJA),
Answering that question is a matter of statutory interpretation. The EAJA authorizes fees in “any civil action.”
I
Daley is а Guatemalan national. At the age of twelve, she entered the United States without inspection or admission. Later, as an adult, Daley was convicted of second-degree murder in California state court. Although her murder conviction was ultimately vacated and substituted with a reduced conviction for assault with a deadly weapon, Daley served nearly fifteen years in prison.
While in state custody, Daley interviewed with U.S. Immigration and Customs Enforcement (ICE), during which she declined a stipulated order of removal. In the absence of a stipulated order, ICE decided to immediately detain Daley upon her release from state prison on November 1, 2021. ICE then transferred her to a facility in Aurora, Colorado. Roughly three months later, Daley applied for asylum, withholding of removal, and protection under the Convention Against Torture.
On November 22, 2022, having spent over a year in immigration detention without receiving a timeline for release or a bond hearing, Daley filed a petition for a writ of habeas corpus under
Subsequently, Daley moved for attorneys’ fees under the EAJA. The district court ruled that Daley was entitled to fees and awarded $18,553.92. This appeal followed.
II
“‘[W]e review the decision to award attorney fees, and the amount awarded, for abuse of discretion,’ though any legal analysis underlying the award is reviewed de novo.” First Am. Title Ins. Co. v. Nw. Title Ins. Agency, 906 F.3d 884, 900 (10th Cir. 2018) (quoting Xlear, Inc. v. Focus Nutrition, LLC, 893 F.3d 1227, 1233 (10th Cir. 2018)). Here, our review is de novo because only interpretation of the EAJA, a legal question, is at issue.
III
Unless waived, sovereign immunity generally shields the Government, including agencies and officers in their official capacity, from suit. Normandy Apartments, Ltd. v. U.S. Dep‘t of Hous. & Urb. Dev., 554 F.3d 1290, 1295 (10th Cir. 2009). This includes shielding the Government from claims for attorneys’ fees. Adamson v. Bowen, 855 F.2d 668, 670 (10th Cir. 1988) (citing Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983)). Congress waived that immunity for certain types of fees when it enacted
When interpreting the scope of a sovereign immunity waiver, we strictly construe the relevant statutory language in favor of maintaining immunity. Under this canon of interpretation – sometimes referred to as a clear statement rule – waivers of immunity encompass only those claims for which there is “an unmistakable statutory expression of congressional intent to waive the Government‘s immunity.” FAA v. Cooper, 566 U.S. 284, 291 (2012); see also Lane v. Peña, 518 U.S. 187, 192 (1996) (similar). An unmistakable intent need not be expressed using “magic words” or “in any particular way.” Dep‘t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 48 (2024) (quoting Cooper, 566 U.S. at 291). No matter how Congress makes its intent clear, so long as its intent is clear, sovеreign immunity is waived. But if there is any ambiguity in the text of a waiver, meaning that there is a “plausible” interpretation “preserv[ing] sovereign immunity,” we must adopt that “plausible” interpretation. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382, 388 (2023) (quoting Cooper, 566 U.S. at 290).
That said, we may not resort to the sovereign immunity canon at the first sign of any potential ambiguity in the text as this would abdicate our
With these principles in mind, we now proceed to interpret the EAJA.
A
The statutory text is the core of our inquiry, so we start there. See Kirtz, 601 U.S. at 49. The EAJA authorizes fees against the Government “in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action,” subject to exceptions not applicable here.
When Congress passed the EAJA in 1980, the notion of a “civil action” had already existed for at least two hundred years. See Pub. L. 96-481 tit. II, 94 Stat. 2321, 2325–30 (1980). “Civil action” was a common law “term[] of art in which [was] accumulated the legal tradition and meaning of centuries of practice.” Sekhar v. United States, 570 U.S. 729, 733 (2013) (quoting Morissette v. United States, 342 U.S. 246, 263 (1952)). Congress‘s decision to use “civil action” in the EAJA therefore brought the “old soil” of that term‘s history into the statute. SEC v. Jarkesy, 603 U.S. 109, 125 (2024) (quoting United States v. Hansen, 599 U.S. 762, 778 (2023)). So as “a settled principle of interpretation,” we must presume that Congress incorporаted the common law understanding of “civil action” into the EAJA. Sekhar, 570 U.S. at 732.
The concept of a civil action has its roots in the English common law tradition. Common law recognized civil actions as a distinct category of legal proceeding based on the division of wrongs into “private wrongs” and “public wrongs.” 3 William Blackstone, Commentaries *2. Private wrongs stemmed from the “infringement or privation of the private or civil rights belonging to individuals . . . and [were] thereupon frequently termed civil injuries.” Id. To remedy a civil injury, individuals made “application to the[]
Of course, “every public offence is also a private wrong” because “it affects the individual, and it likewise affects the community.” 4 Blackstone, supra, at *5. Yet, commentators like Blackstone still considered the “distinction of crimes from civil injuries [to be] very apparent.” Id. at *6. Blackstone illustrated this distinction through the example of battery. Battery has a criminal (public) component since it “disturb[s] the public peace.” Id. But it also has a separate civil (private) component because the injured individual could seek a “private remedy . . . for the injury, which he in particular sustains, and recovеr a civil satisfaction in damages.” Id.
In sum, English common law defined “civil actions” as actions that seek redress for an individual‘s private injury, or vindication of an individual‘s private right. And to determine if an action satisfies that definition, the common law focused on the remedy being sought, not the conduct being challenged.
American courts picked up on this thread and adopted it. For example, the Supreme Court recognized that civil proceedings are those “which affect
So too did other courts around the country. The Circuit Court of the District of Columbia observed that a “civil action” is one “to try a private right.” United States v. Columbian Ins. Co. of Alexandria, 25 F. Cas. 585, 588 (C.C.D.C. 1821) (No. 14,840). The Kentucky Court of Appeals wrote, “In general, the enforcement of a private right, or the redress of a private wrong, is attainable, in a court of justice, only through the instrumentality of a civil action.” Jones v. Hoffman, 57 Ky. (18 B. Mon.) 656, 656 (1857). And the Minnesota Supreme Court noted that “the ordinary civil action” is one that seeks “to redress private wrongs or enforce private rights.” True v. True, 6 Minn. 458, 465 (1861).2 Some states even codified this understanding, expressly defining civil actions as those based on private rights or wrongs. E.g.,
Legal dictionaries from the time of the EAJA‘s passage also accord with this common law understanding. See Food Mktg. Inst., 588 U.S. at 434 (consulting contemporary dictionaries). One defined “civil action” as an “[a]ction brought to enforce, redress, or protect private rights,” encompassing “all types of actions other than criminal proceedings.” Civil Action, Black‘s Law Dictionary (5th ed. 1979). Another likewise defined “civil action” as one “brought to enforce a civil right” or “for the enforcement or protection of a private right.” Civil Action, Ballentine‘s Law Dictionary
Given the fact that multiple sources – commentators, courts, statutes, and dictionaries – across such a long period of time have consistently defined “civil action,” we construe the EAJA in line with that definition. As used in the EAJA, “civil action” unambiguously refers to any legal action brought to enforce a private or civil right, or to redress a private wrong.
B
Now that we have defined “civil action,” our next task is to apply that definition to habeas actions challenging immigration detention.
1
Again, common law tradition provides a starting point. See Sekhar, 570 U.S. at 732. The common law recognizes a right of “personal liberty,” defined as the right to be free from “imprisonment or restraint, unless by due course of law.” 1 Blackstone, supra, at *130. That right is a private one because it attaches to an individual‘s person rather than to the public at large. Id. at *118. And since a wrong is “nothing else but a privation of right,” 3 Blackstone, supra, at *2, the violation of personal liberty through
The Suрreme Court has said as much. A full century before Congress passed the EAJA, the Court explained that “[t]he writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty.” Ex parte Tom Tong, 108 U.S. 556, 559 (1883). For that reason, “[s]uch a proceeding . . . is, in [the Court‘s] opinion, a civil proceeding.” Id. at 560. In the years that followed, the Court repeatedly and consistently affirmed this holding. E.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 60 (1978) (“Congress clearly has power to authorize civil actions against tribal officers, and has done so with respect to habeas corpus relief[.]“); Fay v. Noia, 372 U.S. 391, 423 (1963) (acknowledging “the traditional characterization of the writ of habeas corpus as an original . . . civil remedy“), overruled on other grounds by Coleman v. Thompson, 501 U.S. 722 (1991); Riddle v. Dyche, 262 U.S. 333, 335–36 (1923) (“The writ of habeas corpus is . . . an independent civil suit[.]“); Borrego v. Cunningham, 164 U.S. 612, 618 (1896) (“[A] proceeding in habeas corpus [is] a civil . . .
Moreover, every federal circuit court existing at the time of the EAJA‘s passage had held that habeas was civil.5 See, e.g., Mercado v. United States, 183 F.2d 486, 487 (1st Cir. 1950) (“[H]abeas corpus [] has always
To be sure, there are some cases suggesting that habeas is not purely civil. For instance, in Harris v. Nelson, the Supreme Court accepted that “habeas corpus proceedings are characterized as ‘civil‘” but cast doubt on
Harris dealt narrowly with whether the Federal Rules of Civil Procedure governing and authorizing discovery applied to habeas actions. 394 U.S. at 289–90. In answering that question, the Harris court focused on how habeas practice differed from general civil practice. Id. at 294. But practice and procedure offer little insight into whether an action is civil in nature in the sense that it is geared to redressing private wrongs. After all, there are several specialized civil actions that have unique procedures not applicable to the more typical or classic civil action. Admiralty claims are one example because they are subject to supplemental rules that no other civil claims are subject to. See
In fact, the EAJA itself makes clear that its waiver of sovereign immunity extends to actions that do not follow the normal rules of civil procedure. The EAJA expressly includes “proceedings for judicial review of agency action” within the broader umbrella of “civil action.”
Meanwhile, Schlanger construed the meaning of “civil action” by applying legislative history. 401 U.S. at 490 n.4; see also Stafford v. Briggs, 444 U.S. 527, 542–43 (1980) (discussing Schlanger). When construing waivers of sovereign immunity, though, we focus on the meaning of the text and cannot attempt to divine Congress‘s intentions through legislative history. Kirtz, 601 U.S. at 49. In any case, Schlanger construed another statute, not the EAJA, so its analysis of legislative history has no bearing on the question before us now.
More fundamentally, there is still an overwhelming judicial consensus that habeas actions are civil actions even when considering Harris and Schlanger. There need not have been unanimity among the courts for us to find that habeas is unambiguously a “civil action.” It is enough that “‘nearly all[] of the’ relevant judicial decisions have given a
2
The preceding conclusion does not fully resolve the issue before us. After all, petitioners do not file habeas actions in the abstract. They file habeas actions to challenge particular restraints on their freedom. Our precedent teaches that the nature of the challenged restraint matters.
In Ewing v. Rodgers,6 we held that “a habeas petition challenging confinement arising from a criminal judgment is not a ‘civil action‘” within the meaning of the EAJA. 826 F.2d 967, 971 (10th Cir. 1987) (footnote omitted). We reached that conclusion because petitioners in such habeas
3
With that foundation established, we can resolve the issue raised by this appeal. For the reasons explained above, habeas is civil. So too are the underlying proceedings being challenged. Immigration detention is an “aspect of the deportation process.” Demore v. Kim, 538 U.S. 510, 523 (2003). In turn, a deportation proceeding itself is “a purely civil action.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). As a result, immigration detention is civil. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Because both habeas and the underlying immigration proceedings are civil, habeas actions challenging immigration detention are purely civil. Ewing, which addressed criminal habeas rather than immigration habeas, does not require that we hold otherwise. See Vacchio v. Ashcroft, 404 F.3d 663, 672 (2d Cir. 2005) (finding that precedent excluding criminal habeas from the EAJA did not control the question of whether immigration habeas fell within the EAJA‘s scope).
We therefore hold that, under the EAJA, habeas actions challenging immigration detention are unambiguously “civil actions.” The EAJA authorizes the award of attorneys’ fees to petitioners who prevail against the Government in such actions.
C
Because text, common law, and judicial history so strongly characterize immigration habeas actions as civil, we need not turn to any other tools of statutory interpretation. Nonetheless, we also observe that the EAJA‘s stated statutory purpose supports our conclusion.
As a threshold matter, statutory purpose is relevant to our interpretation of sovereign immunity waivers. The Supreme Court has previously endorsed the consideration of statutory purpose. West v. Gibson, 527 U.S. 212, 222 (1999). While the Court has subsequently disavowed legislative history when interpreting waivers, Kirtz, 601 U.S. at 49, it has not rejected the use of purpose. Certainly, the Court‘s instructions to disregard legislative history prevents us from using such history to discern purpose. But here, Congress included an express statement of purpose in the bill enacting the EAJA. Pub. L. 96–481, § 202(c), 94 Stat. 2321, 2325.
The EAJA‘s stated purposes are twofold: firstly “to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in specified situations an award of attorney fees, expert witness fees, and other costs against the United States“; and secondly “to insure [sic] the applicability in actions by or against the United States of the common law and statutory exceptions to the ‘American rule’ respecting the award of attorney fees.” Id. The parties do not address the second purpose, so we focus on the first.
Habeas petitions play an important role in challenging - and deterring - unlawful detention. Yet, the high cost of retaining an attorney to file a petition can dissuade many people from doing so. That cost barrier is especially high in the immigration detention context. Immigratiоn is a sprawling and complicated area of law that can be difficult to navigate without the aid of counsel. It is also difficult for those in immigration detention to afford counsel because they are unable to work while detained. See Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Pa. L. Rev. 1, 35 (2015). The availability of
Permitting fees would incentivize private counsel to accept representation of indigent, immigration detainees. It would also boost the availability of pro bono services in this area. Although pro bono counsel are willing to represent clients free of charge, their services are not costless. Instead, pro bono counsel must secure their funding from sources other than their clients. For legal services organizations that already offer pro bono immigration services, EAJA fees would supplement their funding streams and provide an opportunity for them to expand their services. See Amica Ctr. Am. Br. at 20-23. For organizations that did not previously offer immigration services due to lack of funding, the availability of fees could enable them to offer immigration services for the first time. Id.
The Government suggests that the EAJA‘s fee incentives are unnecessary in the context of habeas challenges to immigration detention, so statutory purpose does not favor permitting such fees. For one, the Government claims that the Criminal Justice Act authorizes district courts to appoint counsel for indigent individuals challenging their immigration detention through habeas. Reply Br. at 25 (citing
The Government separately contends that detention status gives individuals a “custodial incentive” to challenge their immigration detention. It is true that we considered “custodial incentives” in the past when we held that EAJA fees were not available in habeas actions challenging criminal imprisonment. Ewing, 826 F.2d at 971 & n.5. But we also explicitly distinguished the custodial incentive in cases of criminal imprisonment from the incentive in cases involving immigration. Id. Once a criminal judgment is affirmed on appeal, the only way to seek release from the courts is to file a habeas petition. There is no other choice.
When it comes to immigration detention, though, an individual can avoid continued confinement by agreeing to removal. See
Experience, too, illustrates the difference between criminal and immigration habeas. As the Ewing court observed, “[t]he volume of habeas petitions processed in the federal courts . . . suggests that there is little, if any, economic deterrent in seeking review of the legality of criminal confinement.” Ewing, 826 F.2d at 971. The volume of habeas petitions challenging immigration detention is not so high. According to ICE‘s own statistics, there were approximately 38,000 immigrants in detention at the end of fiscal year 2024. U.S. Immigration and Customs Enforcement, FY 2024 Detention Statistics, https://perma.cc/FA4X-FZ7S. But court statistics show that just 448 habeas petitions were filed on behalf of alien detainees in calendar year 2024. U.S. Courts, Statistical Tables for the Federal Judiciary C-2 (Dec. 31, 2024 reporting period), https://perma.cc/E4E3-JHJF. Interpreting the EAJA to allow fees in immigration habeas actions therefore furthers its statutory purpose.
IV
We next address the Government‘s remaining arguments, which we find to be unpersuasive.
A
The thrust of the Government‘s position is that habeas is not a civil action because, by its inherent nature, habeas is a special form of hybrid action with both civil and criminal characteristics. According to the
First, the Government‘s support for its hybrid thesis comes almost exclusively from cases recognizing that habeas is procedurally distinct from the average civil case. Op. Br. at 19-23. As we already explained earlier in this opinion, though, the fact that the EAJA includes “proceedings for judicial review of agency action” renders procеdural differences irrelevant. Supra Section III.B.1.
Second, the Government argues that all habeas actions are of the same nature because “the essence or function of the habeas application [is] to seek release.” Reply Br. at 17 (quoting Obando-Segura v. Garland, 999 F.3d 190, 194 (4th Cir. 2021)). That argument is correct as far as it goes. But it cuts against the Government‘s position. The act of seeking release from unlawful custody is civil because unlawful custody is a private wrong. See 1 Blackstone, supra, at *130; 3 Blackstone, supra, at *127. So, if the Government‘s argument about the essential nature of habeas controlled, that argument would support the conclusion that all habeas actions are civil, not that all habeas actions are hybrid.
Third, the Government takes issue with the fact that many of the
Finally, the Government encourages us to follow the Fourth and Fifth Circuits in finding that habeas is a hybrid proceeding no matter the naturе of the underlying detention. See Obando-Segura, 999 F.3d 190; Barco v. Witte, 65 F.4th 782 (5th Cir. 2023). However, neither the Fourth nor Fifth Circuits conducted the type of close historical analysis that undergirds our conclusion here, and we respectfully disagree with the path that each took to conclude that immigration habeas actions are civil-criminal hybrids.
In Obando-Segura, the Fourth Circuit primarily relied on three cases to reach its holding: the Supreme Court‘s decisions in Harris and Schlanger, and the Fourth Circuit‘s own decision in O‘Brien v. Moore, 395 F.3d 499 (4th Cir. 2005). We have already explained why Harris and Schlanger do not establish that habeas is hybrid under the EAJA. Supra Section III.B.1. And O‘Brien dealt with habeas actions challenging criminal imprisonment, not
Obando-Segura declined to apply this aspect of O‘Brien because O‘Brien did not specifically differentiate habeas actions challenging criminal detention from those challenging civil detention. Obando-Segura, 999 F.3d at 194. Apart from O‘Brien‘s silence on the issue, Obando-Segura identifies no other source of non-civil character in habeas actions challenging immigration detention. Perhaps the Obando-Segura court thought itself bound by O‘Brien‘s silence. We certainly are not, and we do not find it persuasive to read so much into O‘Brien‘s silence, as the panel there may not have had occasion to draw any distinction between the two types of habeas. See In re Cox Enters., Inc. Set-top Cable Television Box Antitrust Litig., 835 F.3d 1195, 1212 (10th Cir. 2016).
We find the Fifth Circuit‘s decision in Barco to be of limited assistance as well. The extent of Barco‘s analysis was to cite four cases (including O‘Brien and Ewing, which we have disсussed above) in which courts held that habeas petitions challenging criminal imprisonment were civil-criminal hybrid actions. Barco, 65 F.4th at 785 & n.1. Barco did not consider
B
In a variation of its main argument, the Government suggests that our decision interpreting the Prison Litigation Reform Act in McIntosh v. U.S. Parole Commission, counsels in favor of interpreting the EAJA to avoid “case-by-case” adjudication of different types of habeas petitions. Reply Br. at 15 (citing McIntosh, 115 F.3d 809 (10th Cir. 1997)). Essentially, the Government advocates for a categorical approach. That is, if a category contains both purely civil cases and civil-criminal hybrid cases, EAJA fees are unavailаble in all the cases in that category. Were we to adopt that approach, all habeas would be beyond the EAJA‘s reach because habeas actions challenging criminal imprisonment are not purely civil. See Ewing, 826 F.2d at 971.
The problem is that this approach depends on McIntosh‘s analysis of the Prison Litigation Reform Act, which uses the phrase “a civil action.” 115 F.3d at 811 (emphasis added). The EAJA uses the phrase “any civil action.”
What is more, “courts ‘are not at liberty to create an exception where Congress has declined to do so.‘” Freytag v. Comm‘r, 501 U.S. 868, 874, (1991) (quoting Hallstrom v. Tillamook Cnty., 493 U.S. 20, 27 (1989)). Congress included just one categorical exception in the EAJA: “cases sounding in tort.”
C
Lastly, the sovereign immunity canon or clear statement rule, which would instruct us to adopt the Government‘s preferred interpretation due to ambiguity in the text, does not compel a different result. Because we conclude that habeas actions challenging immigration detention unambiguously fall within the EAJA‘s ambit, we are not required to accept the Government‘s interpretation. Regardless, under the Government‘s preferred construction of the EAJA - that fees are available “only [in] those cases that are wholly or purely civil in nature,” Op. Br. at 24 - fees would
V
The EAJA may be a broad statute, but a statute is not ambiguous just becаuse it is broad. Here, we read the EAJA‘s broad language to unambiguously authorize fees in habeas actions challenging immigration detention.
AFFIRMED.