Metropolitan News-Enterprise


Wednesday, August 31, 2016


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Court: ‘No-Fly’ Plaintiff May Be Entitled to Bigger Fee Award




Attorneys for the former Stanford University student who won a precedent-setting ruling in her fight to remove her name from terrorism watchlists may be entitled to an increase in the $420,000 fee award they obtained from a U.S. district judge, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Senior District Judge Royce Lamberth of the District of Columbia, sitting by designation, said District Judge William Alsup of the Northern District of California used a flawed analysis in ruling on the fee award under the Equal Access to Justice Act.

The EAJA provides that a party that prevails in litigation against the federal government is entitled to a fee award, plus expenses, if the government’s position is not “substantially justified.” Lamberth said the district judge erred in concluding that the government had substantial justification for some of its arguments, but not for others, and in awarding plaintiff Rabinah Ibrahim a fraction of the $3.36 million in fees her lawyers claimed.

Ruling Cited

Lamberth cited a Supreme Court decision as holding that there has to be a single “substantial justification” determination, looking at a case as a whole.

Ibrahim is a Malaysian Muslim who was attempting to fly home from San Francisco when she was detained in January 2005. After being handcuffed in front of her 14-year-old daughter and held for about two hours, she was released at the direction of the FBI, and allowed to fly the next day.

She sued, among others, the FBI’s Terrorist Screening Center, which is responsible for compiling the list of names ultimately placed on the No-Fly List, and the Transportation Security Administration, which implemented the No-Fly List with a “Security Directive” requiring airlines to check passengers’ identification against the list and setting forth the procedures to be followed if they find a passenger’s name on the list.

Alsup ruled that the district court had not jurisdiction to review the No-Fly List because it was an “order” of the TSA and thus non-reviewable by the district court under 49 U.S.C. § 46110(a)—which grants exclusive jurisdiction to the federal appellate courts to “review” the “order[s]” of a number of agencies, including the TSA.

A divided Ninth Circuit panel, however, ruled in 2008 that it was the Terrorist Screening Center that placed Ibrahim’s name on the list, so the district court had jurisdiction.

On Remand

The case went back to Alsup, who found that Ibrahim had been placed on the No-Fly List because an FBI agent checked the wrong box on a form, that she had been denied due process, and that she was entitled to relief, including the removal of any incorrect information the government had entered in the databases. It was reportedly the first successful challenge to the No-Fly List.

Ibrahim’s visa was revoked, however, and she was not permitted to return to the United States. She reportedly is now the dean at an architectural college in her native country.

In the attorney fee proceedings, Alsup found that the government had made justified arguments regarding standing, against the plaintiff’s visa-related claims, and asserting privilege as to various items of evidence, and disallowed fees associated with those issues.

Supreme Court Holding

Lamberth, however, cited Commissioner, INS v. Jean (1990) 496 U.S. 154.

He acknowledged that the D.C. Circuit has read the case differently, but concluded:

“Jean, then, we think is clear: courts are to make but one substantial justification determination on the case as a whole. That is not to say a court may not consider the government’s success at various stages of the litigation when making that inquiry, but those separate points of focus must be made as individual inquiries collectively shedding light on the government’s conduct on the whole, rather than as distinct stages.”

The ruling was not entirely a victory for the plaintiff, however, as the panel held that the government did not act in bad faith. If it had, Lamberth explained, the EAJA’s hourly cap on the fee award would not have applied.

The case is Ibrahim v. U.S. Department of Homeland Security, 14-16161.


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