DR. RAHINAH IBRAHIM 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

Date: 01-15-2022

Case Number: 14-16161

Judge: Kim McLane Wardlaw

Court: center>

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
On appeal from The United States District Court for the Northern District of California

Plaintiff's Attorney: Teal Luthy Miller (argued) and Ye-Ting Woo, Assistant

United States Attorneys; Tessa M. Gorman, Acting United

States Attorney, Western District of Washington; United

States Attorney’s Office

Defendant's Attorney:

Denver, CO - Best Criminal Defense Lawyer Directory

Description:

San Francisco, California - Criminal defense lawyer represented defendant with a violation of the Transportation Security Administration's (TSA) "No Fly” list charge.

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

8 IBRAHIM V. DHS

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

(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

(1983). These errors were compounded by the nowwithdrawn 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

IBRAHIM V. DHS 9

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

1 For ease of reading, attached as Appendix A is a glossary of the

numerous acronyms referenced throughout this opinion.

10 IBRAHIM V. DHS

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

IBRAHIM V. DHS 11

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 information regarding

her status. The April 14 letter cited Dr. Ibrahim's possible

ineligibility "under Section 212(a)(3)(B) of the Immigration

and Nationality Act [(INA)],” codified at 8 U.S.C

§ 1182(a)(3)(B), to explain the revocation. That section

prohibits entry into the U.S. by any person who engaged in

terrorist activity, was reasonably believed to be engaged in

or likely to be engaged in terrorist activity, or who has

incited terrorist activity, among other things. 8 U.S.C.

2 This avenue of redress was replaced in 2007 by the Travel Redress

Inquiry Program (TRIP), see 49 U.S.C. § 44926(a), which requires a

"timely and fair” process for persons wrongly delayed or prohibited from

boarding a commercial aircraft.

12 IBRAHIM V. DHS

§ 1182(a)(3)(B). However, the letter also told her that the

revocation did "not necessarily indicate that [she would be]

ineligible to receive a U.S. visa in [the] future.” Not having

heard back from TSA, Dr. Ibrahim retained McManis

Faulkner. And on January 27, 2006, she filed the underlying

action to challenge her placement on the No Fly list, as well

as the federal and state governments' administration of the

list and their treatment of her with respect to it.

In a letter dated March 1, 2006, Dr. Ibrahim received a

response to her PIVF. That letter stated that TSA had

"conducted a review of any applicable records in

consultation with other federal agencies, as appropriate,”

and continued, "[w]here it has been determined that a

correction to records is warranted, these records have been

modified to address any delay or denial of boarding that you

may have experienced as a result of the watchlist screening

process.” The letter did not indicate Dr. Ibrahim's status

with respect to the No Fly list or any other federal watchlist.

In 2009, Dr. Ibrahim applied for a visa to attend

proceedings in this action. The U.S. Embassy in Kuala

Lumpur interviewed her on September 29, 2009. On

December 14, 2009, a consular officer of the U.S.

Department of State sent a letter to Dr. Ibrahim notifying her

of her visa application's denial. The consular officer wrote

the word "(Terrorist)” next to the checked box for INA

§ 212(a)(3)(B) on an accompanying form to explain why Dr.

Ibrahim was deemed inadmissible.

In September 2013, Dr. Ibrahim submitted a visa

application so that she could attend the trial in her case. She

went to a consular officer interview in October 2013. At the

interview, the consular officer asked her to provide

supplemental information via e-mail, which Dr. Ibrahim

duly provided. Trial in this action began on December 2 and

IBRAHIM V. DHS 13

ended on December 6. While she did not receive a response

to her visa application before trial, at trial, government

counsel stated that the visa had been denied. Dr. Ibrahim's

counsel said that they had not been aware of the denial and

that Dr. Ibrahim had not been notified.

B. United States Government

While Dr. Ibrahim stood in limbo, unaware of her status

on any list and unable to return to the United States, even to

attend the trial of her own case, the government was well

aware that her placement on the No Fly list was a mistake

from the get-go.3

Here it is helpful to understand, as much as we can on

this record, how the U.S. "government maintains and

operates a web of interlocking watchlists, all now centered

on the [TSDB],” as described in the district court's post-trial

order.4 The FBI, DHS, the Department of State, and other

agencies administer an organization called the Terrorist

Screening Center (TSC), which manages the TSDB. Both

the TSC and TSDB were created in response to the terrorist

attacks on September 11, 2001, in order to centralize

information about known and suspected terrorists. That

information is then exported as appropriate to various

"customer databases,” i.e., government watchlists, operated

by other agencies and government entities. In this way, "the

3 To this date, we do not know how Dr. Ibrahim was initially flagged

for potential placement in the TSDB, managed by the Terrorist Screening

Center (TSC), of which the No Fly list is a subset. There has never been

a determination, nor can we determine, whether this placement was

motivated by "race, religion, or ethnicity.”

4 None of the following information was deemed classified or

otherwise privileged before or during trial.

14 IBRAHIM V. DHS

dots could be connected.” While the TSDB does not contain

classified information, the government stores classified

"derogatory” information in a closely allied and separate

database called the Terrorist Identities Datamart

Environment (TIDE), which is operated by the National

Counterterrorism Center (NCTC) branch of the Office of the

Director of National Intelligence. These terrorist watchlists,

and others, provide information to the United States

intelligence community, a coalition of seventeen agencies

and organizations within the executive branch, and also

provide information to certain foreign governments.

Today, individuals are generally nominated to the TSDB

using a "reasonable suspicion standard,” meaning

"articulable facts which, taken together with rational

inferences, reasonably warrant the determination that an

individual is known or suspected to be or has been engaged

in conduct constituting, in preparation for, in aid of, or

related to terrorism and terrorist activities.” This standard

was created by executive branch policy and practice and was

not promulgated by Congress or the judicial branch.

However, from 2004 to 2007, the executive branch and its

agencies employed no uniform standard for TSDB

nominations, allowing each agency to use its own

nominating procedures for inclusion in the TSDB based on

each agency's interpretation of homeland security

presidential directives and the memorandum of opinion that

established the TSC. These directives provided little

instruction. For example, one such directive was Homeland

Security Presidential Directive 6 (HSPD-6), which stated,

"[t]his directive shall be implemented in a manner consistent

with the provisions of the Constitution and applicable laws,

including those protecting the rights of all Americans.”

IBRAHIM V. DHS 15

As the centralized database, the TSDB is the repository

for all watchlist nominations. Various government agents

nominate individuals by filling out a physical form, which is

later computerized and used by the TSDB to indicate on

which watchlist each nominee should be included or

excluded. There are several watchlists affected by the

TSDB, namely5:

• the No Fly list (TSA);

• the Selectee list (TSA);

• Known and Suspected Terrorist File (KSTF,

previously known as the Violent Gang and Terrorist

Organizations File);

• Consular Lookout and Support System (CLASS,

including CLASS-Visa, a Department of State

database used for screening of visa applicants, and

CLASS-Passport, a database that applies only to

United States citizens who might be watchlisted)

(Department of State);

• TECS (not an acronym, but the successor to the

Treasury Enforcement Communications System)

(DHS);

• Interagency Border Inspection System (IBIS)

(DHS);

• Tipoff United States-Canada (TUSCAN) (used to

export information from the United States to

Canada); and

• Tipoff Australia Counterterrorism Information

Control System (TACTICS) (used to export

information from the United States to Australia).

5 This is information derived solely from the record before us, so we

do not represent that this is an exclusive list or that there have not been

subsequent changes to the lists.

16 IBRAHIM V. DHS

These TSDB designations are then exported to the

customer/government watchlists, which are each operated

by various government entities and used in various ways.

For example, TSDB nominations are transmitted to the

Department of State for inclusion in CLASS-Visa or

CLASS-Passport. In ruling on visa applications, consular

officers review the CLASS database for information that

may inform the visa application and adjudication process.

In November 2004, shortly after Dr. Ibrahim's husband

Mustafa Kamal Mohammed Zaini visited her from Malaysia

to help her after her surgery, FBI Special Agent Kevin

Michael Kelley (Agent Kelley), located in San Jose,

California, unintentionally nominated Dr. Ibrahim, who was

then a graduate student at Stanford University, to various

federal watchlists using the FBI's National Crime

Information Center (NCIC) Violent Gang and Terrorist

Organizations (VGTO) File Gang Member Entry Form

(VGTOF). VGTO was an office within NCIC. Agent

Kelley misunderstood the directions on the form and

erroneously nominated Dr. Ibrahim to the TSA's No Fly list

and DHS's IBIS. He did not intend to do so.

Agent Kelley testified at trial that he intended to

nominate Dr. Ibrahim to the CLASS, the TSA Selectee list,

TUSCAN (information exported to Canada), and TACTICS

(information exported to Australia) lists. He checked the

wrong boxes, filling out the form exactly contrary to the

form's instructions. The form expressly indicated that he

was to check the boxes for the databases into which the

subject should NOT be placed. Here is a blank copy of the

form:

IBRAHIM V. DHS 17

In other words, Agent Kelley was instructed to check the

boxes for the watchlists for which Dr. Ibrahim was NOT to

be nominated. Here is the form as Agent Kelley completed

it:

Agent Kelley, by failing to check the boxes for the No Fly

list and IBIS, placed Dr. Ibrahim on those watchlists (and by

checking the boxes for CLASS, the TSA Selectee list,

TUSCAN, and TACTICS, Agent Kelley did not place her on

those lists).

Agent Kelley's squad also was conducting a mosque

outreach program. One purpose of the program was to

18 IBRAHIM V. DHS

provide a point of contact between law enforcement and

mosques and Islamic associations. The outreach program

included Muslim and Sikh communities and organizations in

the San Francisco Bay Area. In December 2004, Agent

Kelley and his colleague interviewed Dr. Ibrahim while she

was still attending Stanford University.6 He asked, among

other things, about her plans to attend a conference in

Hawaii, her dissertation work, her plans after graduation, her

involvement in the Muslim community, her husband, her

travel plans, and the organization Jemaah Islamiyah, a

Department of State-designated terrorist organization that

Dr. Ibrahim had heard of only on the news. She was not a

member.7 The Freedom of Information Act-produced

version of Agent Kelley's interview notes with Dr. Ibrahim

were designated by the FBI as "315,” which denotes

"International Terrorism Investigations.”

On January 2, 2005, when Dr. Ibrahim was detained at

SFO on her way to Hawaii, a DHS aviation security

inspector told her that her name had been removed from the

list.

6 Again, we do not know on this record the motivation for singling

out Dr. Ibrahim for the interview, but we note that the district court stated

"it [was] plausible that Dr. Ibrahim was interviewed in the first place on

account of her roots and religion.” The interview also came soon on the

heels of her Muslim husband's visit. However, the motivation question

was the basis for one of the claims the district court found it unnecessary

to reach.

7 Dr. Ibrahim was a member of a non-terrorist organization with a

similar-sounding name, Jemaah Islah Malaysia, a Malaysian

professional organization composed primarily of individuals who

studied in the United States or Europe. The district court declined to find

that Agent Kelley confused Jemaah Islah Malaysia with Jemaah

Islamiyah.

IBRAHIM V. DHS 19

Meanwhile, on January 3, 2005, in the visa office of the

Department of State, one official was sitting on a stack of

pending visa revocations that were based on the VGTO

watchlist from which Agent Kelley had nominated Dr.

Ibrahim to the No Fly list. That official e-mailed another

visa official to report that although "[t]hese revocations

contain virtually no derogatory information,” he was going

to revoke them. The official wrote, because "there is no

practical way to determine the basis of the investigation . . .

we will accept that the opening of an investigation itself is a

prima facie indicator of potential ineligibility under

[§ 212(a)(3)(B) of the INA, relating to terrorist activities].”

One of the revocations in that stack was Dr. Ibrahim's

student visa.

Sure enough, on January 31, 2005, the Department of

State revoked Dr. Ibrahim's F-1 student visa pursuant to

§ 212(a)(3)(B). In an e-mail conversation dated February 8,

2005 between the chief of the consular section at the U.S.

Embassy in Kuala Lumpur and an official in the

coordination division at the Department of State's visa

office, designated "VO/L/C,” the consular chief asked about

a prudential visa revocation cable he had received

concerning the events Dr. Ibrahim experienced in January

2005. The Department of State official replied,

I handle revocations in VO/L/C. The short

version is that this person's visa was revoked

because there is law enforcement interest in

her as a potential terrorist. This is sufficient

to prudentially revoke a visa but doesn't

constitute a finding of ineligibility. The idea

is to revoke first and resolve the issues later

in the context of a new visa application . . . .

My guess based on past experience is that

20 IBRAHIM V. DHS

she's probably issuable. However, there's no

way to be sure without putting her through

the interagency process.

After Dr. Ibrahim's visa was revoked, the Department of

State entered a record into CLASS that notified any consular

official adjudicating a future visa application on her behalf

that she may be inadmissible under § 212(a)(3)(B). In

December 2005, Dr. Ibrahim was removed from the TSA's

Selectee list. Around this time, however, she was added to

TACTICS (exports to Australia) and TUSCAN (exports to

Canada). The government has never explained this

placement or the effect of Dr. Ibrahim's placement on

TACTICS or TUSCAN.8

Two weeks later, on January 27, 2006, Dr. Ibrahim filed

the underlying action. On February 10, 2006, an

unidentified government agent requested that Dr. Ibrahim be

"Remove[d] From ALL Watchlisting Supported Systems

(For terrorist subjects: due to closure of case AND no nexus

to terrorism).” Answering the question "Is the individual

qualified for placement on the no fly list?” the "No” box was

checked. For the question, "If No, is the individual qualified

for placement on the selectee list?” the "No” box was

checked.

On September 18, 2006, the government removed Dr.

Ibrahim from the TSDB because she did not meet the

"reasonable suspicion standard” for placement on it, which

8 The record does not reflect how Canada and Australia use the

information exported into the TUSCAN and TACTICS databases. The

government declined to provide this information during discovery,

deeming it outside the scope of the Federal Rule of Civil

Procedure 30(b)(6) subpoena.

IBRAHIM V. DHS 21

requires that the government believe "an individual is known

or suspected to be or has been engaged in conduct

constituting, in preparation for, in aid of, or related to

terrorism and terrorist activities.” The record, however,

does not indicate whether she was removed from all of the

customer watchlists that subscribed to the TSDB.

On March 2, 2007, Dr. Ibrahim was placed back on the

TSDB. The record does not explain why she was relisted

on the TSDB or which customer watchlists were to be

notified. Two months later, however, on May 30, 2007, Dr.

Ibrahim was again removed from the TSDB. The record

does not show the extent to which Dr. Ibrahim's name was

then removed from the other customer watchlists, nor the

reason for the removal.

Dr. Ibrahim's 2009 visa application to attend

proceedings in this case was initially refused under § 221(g)

of the INA, 8 U.S.C. § 1201(g), because it was determined

that there was insufficient information to make a final

adjudication in the matter. The consular officer requested a

Security Advisory Opinion from the Department of State.

The consular official was concerned that Dr. Ibrahim was

potentially inadmissible under § 212(a)(3)(B) of the INA,

which provides nine classes of aliens ineligible for visas or

admission into the United States based on terrorist activities.

The Security Advisory Opinion from the Department of

State, initially unavailable to Dr. Ibrahim but later produced

in discovery, stated:

Information on this applicant surfaced during

the SAO review that would support a

212(a)(3)(B) inadmissibility finding. Posts

should refuse the case accordingly. Since the

Department reports all visa refusals under

INA Section 212(a)(3)(B) to Congress, post

22 IBRAHIM V. DHS

should notify [the Coordination Division

within the Visa Office] when the visa refusal

is affected [sic]. There has been no request

for an INA section 212(d)(3)(A) waiver at

this time.

Based on the Security Advisory Opinion's finding, the

consular officer denied her visa application, and wrote the

word "(Terrorist)” on the form to explain the inadmissibility

determination to Dr. Ibrahim.

On October 20, 2009, Dr. Ibrahim was again nominated

to the TSDB pursuant to a secret exception to the reasonable

suspicion standard. The government claims that the nature

of the exception and the reasons for the nomination are state

secrets. In Dr. Ibrahim's circumstance, the effect of the

nomination was that Dr. Ibrahim's information was exported

from the TSDB database solely to the Department of State's

CLASS database and DHS's TECS database.

From October 2009 to the present, Dr. Ibrahim has been

included on the TSDB, CLASS, and TECS watchlists. She

has been off the No Fly and Selectee lists. She remains in

the TSDB, even though she does not meet the "reasonable

suspicion standard,” pursuant to a classified and secret

exception to that standard.

Government counsel conceded at trial that Dr. Ibrahim

was not a threat to the national security of the United States

and that she never has been. She did not pose (and has not

posed) a threat of committing an act of international or

domestic terrorism with respect to an aircraft, a threat to

airline passenger or civil aviation security, or a threat of

domestic terrorism. Despite this assessment, Dr. Ibrahim

has been unable to return to the United States to this day.

IBRAHIM V. DHS 23

II.

On January 27, 2006, Dr. Ibrahim filed suit against DHS,

TSA, the TSC, the FBI, the Federal Aviation Administration

(FAA), and individuals associated with these entities

(collectively, the federal defendants); the City and County of

San Francisco, the San Francisco Police Department, SFO,

the County of San Mateo, and individuals associated with

these entities (collectively, the city defendants); and United

Airlines, UAL Corporation, and individuals associated with

these entities (collectively, the private defendants). Dr.

Ibrahim asserted § 1983 claims and state-law tort claims

arising out of her detention at SFO, as well as several

constitutional claims based on the inclusion of her name on

government terrorist watchlists. On August 16, 2006, the

district court dismissed her claims against the federal

defendants under 49 U.S.C. § 46110(a), which vests

exclusive original jurisdiction in the courts of appeals over

suits challenging security orders issued by TSA. The order

also dismissed Dr. Ibrahim's claims against a TSA employee

and the airline. Dr. Ibrahim appealed.

We affirmed in part, reversed in part, and remanded. We

reversed the district court's dismissal of the federal

defendants, holding that § 46110(a) does not bar district

court jurisdiction over Dr. Ibrahim's challenges to her

placement on the government terrorist watchlists, including

the No Fly list, because the lists are managed by the TSC

rather than TSA. Ibrahim v. Dep't of Homeland Sec.,

538 F.3d 1250, 1254–56 (9th Cir. 2008) (Ibrahim I). We

affirmed the district court's conclusions that § 46110(a)

requires all challenges to TSA policies and procedures

implementing the No Fly and other lists to be filed directly

in the courts of appeals, that the federal agency and airline

actions were not state actions under § 1983, and that the tort

24 IBRAHIM V. DHS

claims against the federal officials in their official capacities

and against the airline defendants were precluded. Id. at

1256–58. We further held that the district court had personal

jurisdiction over the claims against the TSA employee, who

was sued in his individual capacity.9 Id. at 1258–59. We

remanded the issue of standing to the district court to decide

in the first instance. Id. at 1254–56, 1256 n.9.

After we remanded the case, Dr. Ibrahim filed a Second

Amended Complaint (SAC), alleging various Bivens,

constitutional, § 1983, statutory, state tort, and

Administrative Procedure Act (APA) claims against several

federal agencies and federal officials in their official

capacities (collectively, the Federal Defendants) and state

and local government agencies, certain individuals in their

individual capacities, and the U.S. Investigation Services,

Inc. (collectively, the Non-Federal Defendants). Dr. Ibrahim

requested an injunction that would require the federal

government to take her name off its terrorist watchlists,

including the No Fly list, or, in the alternative, to provide

procedures under which she could challenge her inclusion on

those lists, in addition to other non-monetary requests and

damages. The SAC also sought limited relief relevant to Dr.

Ibrahim's visa denial, but stopped short of attempting to

force the government to issue her a visa.

Both the Federal Defendants and Non-Federal

Defendants filed motions to dismiss with respect to the

majority of the claims. In an order dated July 27, 2009, the

9 We held that although the TSA employee "lives in Virginia and

has no ties to California,” the court had specific jurisdiction over Dr.

Ibrahim's claims against him because "(1) [he] purposefully directed his

action (namely, his order to detain Ibrahim) at California; (2) [Dr.]

Ibrahim's claim arises out of that action; and (3) jurisdiction is

reasonable.” Ibrahim I, 538 F.3d at 1258 (citation omitted).

IBRAHIM V. DHS 25

district court partially granted the Non-Federal Defendants'

motions to dismiss. Thereafter, all of the Non-Federal

Defendants entered into cash settlements with Dr. Ibrahim.

In the same order, the district court again dismissed Dr.

Ibrahim's claims against the Federal Defendants. These

claims alleged that the inclusion of Dr. Ibrahim's name on

the government's terrorist watchlists violated her First

Amendment right to freedom of association and her Fifth

Amendment rights to due process and equal protection. She

also alleged that the Federal Defendants violated the APA,

arguing that the APA waives the sovereign immunity of the

United States, thereby allowing her claims under the First

and Fifth Amendments and authorizing remedies for those

claims.

The district court held that while Dr. Ibrahim could seek

damages for her past injury at SFO (and had successfully

settled that part of the case), she had voluntarily left the

United States and, as a nonimmigrant alien abroad, no longer

had standing to assert constitutional and statutory claims to

seek prospective relief. The district court held that, although

nonimmigrant aliens in the United States had standing to

assert constitutional and statutory claims, a nonimmigrant

alien who had voluntarily left the United States and was at

large abroad had no standing to assert federal claims for

prospective relief in our federal courts. Dr. Ibrahim filed a

second appeal.

We affirmed in part, but reversed as to prospective

standing by holding that even a nonimmigrant alien who had

voluntarily left the United States nonetheless has standing to

litigate federal constitutional claims in the district courts of

the United States so long as the alien had a "substantial

voluntary connection” to the United States. Ibrahim v. Dep't

of Homeland Sec., 669 F.3d 983, 996 (9th Cir. 2012)

26 IBRAHIM V. DHS

(Ibrahim II). We held that Dr. Ibrahim had such a

connection because of her time at Stanford University, her

continuing collaboration with professors in the United

States, her membership in several professional organizations

located in the United States, the invitations for her to return,

and her network of close friends in the United States. Id. at

993–94, 996. The government did not seek review by the

Supreme Court.

Following the second remand, the government again

filed a motion to dismiss, which the district court denied.

Despite the unequivocal pronouncement from our court and

the district court that Dr. Ibrahim had adequately pleaded

Article III standing, the government argued over the next

year that Dr. Ibrahim lacked standing. The government

made this argument in its third motion to dismiss, its motion

for summary judgment, its statements during trial, and its

proposed findings of fact and conclusions of law. The

government persisted, even though it was abundantly clear

that "the standing issue had gone the other way on appeal.”

From the February 2012 remand through trial, the parties

and the district court were embroiled in discovery disputes

involving the state secrets privilege, the law enforcement

privilege, and assertions of "sensitive security information”

(SSI), 49 C.F.R. § 1520.5. The government invoked these

as bases for withholding classified and otherwise allegedly

sensitive government information from Dr. Ibrahim and her

counsel.

On April 19, 2013, after years of litigation, the district

court finally issued two orders granting in part and denying

in part Dr. Ibrahim's motions to compel discovery.

Resolving these disputes required the district court judge to

review individually each of the documents Dr. Ibrahim

sought. Most of this review was conducted ex parte and in

IBRAHIM V. DHS 27

camera due to the privileged, classified, or secret nature of

the documents. The state secrets privilege was upheld as to

nearly all of the classified documents in question. The

government's assertion of other privileges regarding nonclassified documents was overruled as to the majority of the

remaining documents. The district court compelled the

government to release information specifically related to Dr.

Ibrahim's watchlist history, in addition to her current

watchlist statuses. It also required the government to

produce Federal Rule of Civil Procedure 30(b)(6) witnesses.

At last, Dr. Ibrahim and her attorneys were able to learn

what the government had known all along. On May 2, 2013,

the government stated that Dr. Ibrahim was inadvertently

placed on the No-Fly list but did not explain the details of

this mistake, or who was involved. On May 2, 2013, when

the government responded to Dr. Ibrahim's interrogatory

requests, Dr. Ibrahim learned, for the first time, her historical

and current watchlist statuses.10 On September 12, 2013,

again over the government's vigorous objections, Dr.

Ibrahim's attorneys deposed Agent Kelley and learned that

her placement on the No Fly and IBIS watchlists was, in fact,

10 The government designated all of its interrogatory responses

"attorneys' eyes only,” which, under the protective order, meant that

only Dr. Ibrahim's attorneys were allowed to review information

produced with this stamp, and Dr. Ibrahim herself was not permitted to

review those documents. As a result, it is difficult to discern precisely

when Dr. Ibrahim herself was able to learn certain information.

However, with respect to information regarding her current and

historical watchlist statuses, the district court concluded those were not

protected by privilege in its April 2013 order, so it is likely counsel was

able to inform Dr. Ibrahim of her watchlist statuses the day the

interrogatory responses were filed.

28 IBRAHIM V. DHS

a mistake based on Agent Kelley's misreading of the form.11

In sum, the government failed to reveal that Dr. Ibrahim's

placement on the No Fly list was a mistake until two months

before trial, and eight years after Dr. Ibrahim filed suit. And

at all times, as the government vigorously contested Dr.

Ibrahim's discovery requests, and lodged over two hundred

objections and instructions not to answer questions in

depositions, the government was aware that she was not

responsible for terrorism or any threats against the United

States.

The government's discovery games stretched up to and

through trial. The government announced on at least two

occasions that if it invoked the state secrets privilege to

withhold information, then that evidence could not be relied

upon by either side at trial. After making such

representations on the record, on September 13, 2013, the

district court ordered the government to confirm that neither

party could use information withheld on grounds of state

secrets privilege. The government affirmed it would not rely

on any information withheld on grounds of privilege from

Dr. Ibrahim. The government nevertheless reversed course

during trial and sought to prevail by having this action

dismissed due to its inability to disclose state secrets.

The government also filed a motion for summary

judgment. A hearing was held on the government's motion

on October 31, 2013. Instead of discussing the merits of the

summary judgment motion, the government used the vast

majority of the hearing time to discuss whether or not the

11 Dr. Ibrahim first learned that Agent Kelley had participated in the

2004 interview and that Kelley was personally responsible for

nominating her to the TSDB during the deposition of the Acting Deputy

Director of the TSC on May 29, 2013.

IBRAHIM V. DHS 29

trial should be open to the public and whether certain

information listed on Dr. Ibrahim's demonstratives was

subject to various privileges. The district court ultimately

declined to hear further argument and decided the motion on

the papers.

The government's motion for summary judgment was

granted in limited part but mostly denied on November 4,

2013. Dr. Ibrahim's "exchange of information” claim based

on the First Amendment was dismissed. Dr. Ibrahim's

claims based on procedural and substantive due process,

equal protection, and First Amendment rights of expressive

association and against retaliation proceeded to trial. The

government raised lack of standing, yet again, and was

denied, yet again. For the first time, and contrary to what it

had represented before, the government further argued that

summary judgment in its favor was appropriate based on the

state secrets privilege, pursuant to our court's decision in

Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1079

(9th Cir. 2010) (en banc) (noting that even when evidence is

excluded via an invocation of state secrets, the case may still

need to be dismissed because "it will become apparent

during the [United States v. Reynolds, 345 U.S. 1 (1953)12]

12 Analyzing claims under the Reynolds privilege involves three

steps:

First, we must "ascertain that the procedural

requirements for invoking the state secrets privilege

have been satisfied.” Second, we must make an

independent determination whether the information is

privileged .... Finally, "the ultimate question to be

resolved is how the matter should proceed in light of

the successful privilege claim.”

30 IBRAHIM V. DHS

analysis that the case cannot proceed without privileged

evidence, or that litigating the case to a judgment on the

merits would present an unacceptable risk of disclosing state

secrets”).

At the final pretrial conference, the government made

what amounted to a motion for reconsideration of its

previously denied motion for summary judgment on state

secrets grounds. The government argued that the action

should be dismissed because the core of the case had been

excluded as state secrets. The motion was denied on several

grounds. First, the government had failed to raise such an

argument until weeks before trial. Second, it was too late

and too unsettling for the government to reverse its prior

position. Third, even under Jeppesen, 614 F.3d at 1080, the

district court could not say with certainty that Dr. Ibrahim

would be unable to prove her case at trial or that the

government would be absolutely deprived of a meritorious

and complete defense. The district court planned to allow

both sides to present their unclassified evidence through the

"normal” trial procedure and then to allow the government

to submit an ex parte and under seal submission to try to

explain how its state secrets might bear on the actual trial

issues. Surprisingly, although no classified information was

used at trial, the government made numerous privilege

assertions and motions to close the courtroom. Due to these

assertions, the district judge at least ten times "reluctantly”

asked the press and the public to leave the courtroom.

On December 2, 2013, the first day of trial, before

opening statements, Dr. Ibrahim's counsel reported that Dr.

Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1202 (9th Cir.

2007) (citations omitted) (quoting El-Masri v. United States, 479 F.3d

296, 304 (4th Cir. 2007)).

IBRAHIM V. DHS 31

Ibrahim's daughter—a U.S. citizen born in the United States

and a witness disclosed on Dr. Ibrahim's witness list—was

not permitted to board her flight from Kuala Lumpur to

attend trial, evidently because she too was now on the No

Fly list. Consequently, Dr. Ibrahim's daughter missed her

flight and was forced to reschedule. The district court

concluded this was a mistake, and the government quickly

remedied this error.

After a one-week bench trial, in the first No Fly list trial

ever conducted, the district court found in Dr. Ibrahim's

favor on her procedural due process claim and ordered the

government to remove all references to the mistaken

designations by Agent Kelley in 2004 on all terrorist

watchlist databases and records; to inform Dr. Ibrahim of the

specific subsection of the INA that rendered Dr. Ibrahim

ineligible for a visa in 2009 and 2013; to inform Dr. Ibrahim

she is no longer on the No Fly list and has not been since

2005; and to inform Dr. Ibrahim that she is eligible to apply

for a discretionary visa waiver under 8 U.S.C.

§ 1182(3)(D)(iv) and 22 C.F.R. § 41.121(b)(1). The district

court declined to reach Dr. Ibrahim's substantive due

process, equal protection, First Amendment, and APA

claims, because "those arguments, even if successful, would

not lead to any greater relief than already ordered.”

Having won an outstanding victory, Dr. Ibrahim's

lawyers petitioned for fees under the EAJA. In the district

court's April 15, 2014 fee order, although the district court

applauded the lawyers' commitment to this difficult and

unprecedented case, it awarded only limited compensation.

The court acknowledged that Dr. Ibrahim "did not outright

lose” on her substantive due process, equal protection, First

Amendment, and APA claims, but treated those claims as

"unsuccessful” when it calculated fees under Hensley. The

32 IBRAHIM V. DHS

district court found that her substantive due process and

APA claims were related to the procedural due process claim

on which she prevailed, so it allowed fees on these claims.

But the court also ruled that her First Amendment and equal

protection claims were not related to the successful claim,

and denied fees for work performed on those claims. The

district court also concluded that Dr. Ibrahim's counsel was

not entitled to fees for work performed on Dr. Ibrahim's visa

issues, the settlement with the Non-Federal Defendants,

litigation of standing prior to Ibrahim II (although it

permitted fees for time after Ibrahim II), litigation of

privilege issues, and other miscellaneous work. The district

court also found that the government did not act in bad faith,

that Dr. Ibrahim's counsel was not entitled to a rate

enhancement beyond the $125 per hour fee13 stated in

28 U.S.C. § 2412(d)(2)(A)(ii), and that counsel was not

entitled to fees as discovery sanctions pursuant to Federal

Rules of Civil Procedure 37 and 16. The district court

appointed a special master to determine the appropriate

award of fees and costs based on the district court's findings.

Thereafter, the parties and the court engaged in a lengthy

and contentious fee dispute before the special master. The

district court ultimately adopted the special master's

findings and reduced Dr. Ibrahim's fees for various

witnesses and costs associated with those witnesses,

expenses related to obtaining TSA clearance, costs that

would be "reasonably charged” to the client, and costs for

multiple copies of the same book; and rejected certain

expenses for lack of supporting documentation or sufficient

itemization. In total, Dr. Ibrahim sought $3,630,057.50 in

market-rate attorneys' fees and $293,860.18 in expenses.

13 The district court allowed a rate enhancement for James McManis

because of his "distinctive knowledge and skills.”

IBRAHIM V. DHS 33

On October 9, 2014, the district court ultimately awarded Dr.

Ibrahim $419,987.36 in fees and $34,768.71 in expenses.

Dr. Ibrahim appealed the underlying legal framework the

district court utilized to determine the fees she was eligible

to recover, various specific reductions to eligible fees, and

the striking of her objections to the special master's

recommendations.

On appeal, in the now-withdrawn panel opinion, our

court adopted a number of the district court's rulings under

a different approach. Ibrahim v. U.S. Dep't of Homeland

Sec., 835 F.3d 1048 (9th Cir. 2016), reh'g en banc granted,

878 F.3d 703 (9th Cir. 2017) (Ibrahim III). The three-judge

panel concluded that "it was not an abuse of discretion to

find that [Dr.] Ibrahim's unsuccessful claims were unrelated,

because although the work done on those claims could have

contributed to her ultimately successful claim, the facts and

legal theories underlying [Dr.] Ibrahim's claims make that

result unlikely.” Id. at 1063. The panel rested this

conclusion on the novel theory that, because the theories

underlying claims the district court declined to reach were

"mutually exclusive” to the successful claims, the unreached

claims were unrelated. Id. at 1062–63. The panel also held

that the district court incorrectly considered substantial

justification at each stage of litigation; that the government

did not act in bad faith; that the district court did not err in

determining that Dr. Ibrahim had failed to abide by its page

limits in objecting to the special master's report and

recommendation; and that the district court did not abuse its

discretion in striking Dr. Ibrahim's objections to the special

master's report and recommendation. Id. at 1052, 1065–66.

We now clarify that when a district court awards

complete relief on one claim, rendering it unnecessary to

reach alternative claims, the alternative claims cannot be

34 IBRAHIM V. DHS

deemed unsuccessful for the purpose of calculating a fee

award. We also reject the post hoc "mutual exclusivity”

approach to determining whether "unsuccessful” claims are

related to successful claims and reaffirm that Hensley sets

forth the correct standard of "relatedness” for claims under

the EAJA. And we reaffirm that in evaluating whether the

government's position is substantially justified, we look at

whether the government's and the underlying agency's

positions were justified as a whole and not at each stage.

III.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review a district court's award of fees under the EAJA for

abuse of discretion. Thomas v. City of Tacoma, 410 F.3d

644, 649 (9th Cir. 2005); Gonzales v. Free Speech Coal.,

408 F.3d 613, 618 (9th Cir. 2005); Schwarz v. Sec'y of

Health & Human Servs., 73 F.3d 895, 900 (9th Cir. 1995).

We review a district court's finding on the question of bad

faith for clear error. Cazares v. Barber, 959 F.2d 753, 754

(9th Cir. 1992). We review the district court's interpretation

of the EAJA de novo. Edwards v. McMahon, 834 F.2d 796,

801 (9th Cir. 1987). "[A] district court's fee award will be

overturned if it is based on an inaccurate view of the law or

a clearly erroneous finding of fact.” Corder v. Gates,

947 F.2d 374, 377 (9th Cir. 1991).

IV.

The parties now14 do not dispute that Dr. Ibrahim is

entitled to attorneys' fees under the EAJA. What they do

14 Before the district court, the government opposed Dr. Ibrahim's

request for attorneys' fees on substantial justification grounds, and it

originally cross-appealed the entire award in this appeal. Before

IBRAHIM V. DHS 35

dispute is whether the amount of fees the district court

awarded resulted from a proper application of the EAJA and

common law.

In enacting the EAJA, Congress stated:

For many citizens, the costs of securing

vindication of their rights and the inability to

recover attorney fees preclude resort to the

adjudicatory process. . . . When the cost of

contesting a Government order, for example,

exceeds the amount at stake, a party has no

realistic choice and no effective remedy. In

these cases, it is more practical to endure an

injustice than to contest it.

S. Rep. No. 96-253, at 5 (1979).

"The clearly stated objective of the EAJA is to eliminate

financial disincentives for those who would defend against

unjustified governmental action and thereby to deter the

unreasonable exercise of Government authority.” Ardestani

v. I.N.S., 502 U.S. 129, 138 (1991); see also Jean, 496 U.S.

at 163 ("[T]he specific purpose of the EAJA is to eliminate

for the average person the financial disincentive to challenge

unreasonable governmental actions.”). Congress

specifically intended the EAJA to deter unreasonable agency

conduct. Jean, 496 U.S. at 163 n.11 (quoting the statement

of purpose for the EAJA, Pub. L. No. 96-481, §§ 201–08,

94 Stat. 2321, 2325–30 (1980)).

argument, however, the government moved to voluntarily dismiss the

cross-appeal and paid to Dr. Ibrahim the now uncontested amounts of

attorneys' fees and expenses awarded by the district court.

36 IBRAHIM V. DHS

The policy behind the EAJA "is to encourage litigants to

vindicate their rights where any level of the adjudicating

agency has made some error in law or fact and has thereby

forced the litigant to seek relief from a federal court.” Li v.

Keisler, 505 F.3d 913, 919 (9th Cir. 2007). "[W]e have

consistently held that regardless of the government's

conduct in the federal court proceedings, unreasonable

agency action at any level entitles the litigant to EAJA fees.”

Id.

"The EAJA applies to a wide range of awards in which

the cost of litigating fee disputes would equal or exceed the

cost of litigating the merits of the claim.” Jean, 496 U.S. at

163–64. The EAJA was designed to remedy this situation

by providing for an award of reasonable attorneys' fees to a

"prevailing party” in a "civil action” unless the position

taken by the United States at issue "was substantially

justified” or "special circumstances make an award unjust.”

Id. at 158; 28 U.S.C. § 2412(d)(1)(A).

The EAJA specifically provides:

Except as otherwise specifically provided by

statute, a court shall award to a prevailing

party other than the United States fees and

other expenses, in addition to any costs

awarded pursuant to subsection (a), incurred

by that party in any civil action (other than

cases sounding in tort), including

proceedings for judicial review of agency

action, brought by or against the United

States in any court having jurisdiction of that

action, unless the court finds that the position

of the United States was substantially

justified or that special circumstances make

an award unjust.

IBRAHIM V. DHS 37

28 U.S.C. § 2412(d)(1)(A).

Thus, as the Supreme Court held in Jean:

eligibility for a fee award in any civil action

requires: (1) that the claimant be "a

prevailing party”; (2) that the Government's

position was not "substantially justified”;

(3) that no "special circumstances make an

award unjust”; and, (4) pursuant to 28 U.S.C.

§ 2412(d)(1)(B), that any fee application be

submitted to the court within 30 days of final

judgment in the action and be supported by

an itemized statement.

496 U.S. at 158.

The district court correctly concluded that Dr. Ibrahim

was the prevailing party in this case. The third and fourth

Jean factors are not at issue. The only remaining issue as to

Dr. Ibrahim's entitlement to fees is whether the

government's position was substantially justified.

A. Substantial Justification

Where, as here, a movant under the EAJA has

established that it is a prevailing party, "the burden is on the

government to show that its litigation position was

substantially justified on the law and the facts.” Cinciarelli

v. Reagan, 729 F.2d 801, 806 (D.C. Cir. 1984). To establish

substantial justification, the government need not establish

that it was correct or "justified to a high degree”—indeed,

since the movant is established as a prevailing party it could

never do so—but only that its position is one that "a

reasonable person could think it correct, that is, [that the

38 IBRAHIM V. DHS

position] has a reasonable basis in law and fact.”15 Pierce v.

Underwood, 487 U.S. 552, 565, 566 n.2 (1988). That the

government lost (on some issues) does not raise a

presumption that its position was not substantially justified.

Edwards, 834 F.2d at 802 (citation omitted). Fees may be

denied when the litigation involves questions of first

impression, but "whether an issue is one of first impression

is but one factor to be considered.” United States v. Marolf,

277 F.3d 1156, 1162 n.2 (9th Cir. 2002).

When evaluating the government's "position” under the

EAJA, we consider both the government's litigation position

and the "action or failure to act by the agency upon which

the civil action is based.” 28 U.S.C. § 2412(d)(1)(B). Thus,

the substantial justification test is comprised of two

inquiries, one directed toward the government agency's

conduct, and the other toward the government's attorneys'

conduct during litigation. See Gutierrez v. Barnhart,

274 F.3d 1255, 1259 (9th Cir. 2001). The test is an inclusive

one; we consider whether the government's position "as a

whole” has "a reasonable basis in both law and fact.” Id. at

1258, 1261; see also Meier v. Colvin, 727 F.3d 867, 870 (9th

Cir. 2013).

The district court, invoking our decision in Corbin v.

Apfel, 149 F.3d 1051 (9th Cir. 1998), concluded 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. It

accordingly disallowed fees for discrete positions taken by

the government at different stages of the litigation because,

15 The partial dissent is incorrect to view the issue as solely a factual

one, as we must consider the law as applied to the facts.

IBRAHIM V. DHS 39

in its view, the government's positions in each instance were

substantially justified. This approach was error, as it is

contrary to the Supreme Court's instructions in Jean.

In Jean, the Supreme Court rejected the government's

argument that it could assert a "'substantial justification'

defense at multiple stages of an action.” 496 U.S. at 158–

59. Examining the statutory language, the Court noted the

complete absence of any textual support for this position. Id.

at 159. Moreover, "[s]ubsection (d)(1)(A) refers to an award

of fees 'in any civil action' without any reference to separate

parts of the litigation, such as discovery requests, fees, or

appeals.” Id. The Court also noted that "[t]he reference to

'the position of the United States' in the singular also

suggests that the court need make only one finding about the

justification of that position.” Id. An amendment to the

EAJA made clear that the "'position of the United States'

means, in addition to the position taken by the United States

in the civil action, the action or failure to act by the agency

upon which the civil action is based.” Pub. L. No. 99-80,

§ 2(c)(2)(B), 99 Stat. 183, 185 (1985) (codified at 28 U.S.C.

§ 2412(d)(2)(D)). As the Court reiterated, "Congress'

emphasis on the underlying Government action supports a

single evaluation of past conduct.” Jean, 496 U.S. at 159 n.7

(citing H.R. Rep. No. 98-992, at 9, 13 (1984) ("[T]he

amendment will make clear that the Congressional intent is

to provide for attorney fees when an unjustifiable agency

action forces litigation, and the agency then tries to avoid

such liability by reasonable behavior during the litigation.”),

and S. Rep. No. 98-586, at 10 (1984) ("Congress expressly

recognized 'that the expense of correcting error on the part

of the Government should not rest wholly on the party whose

willingness to litigate or adjudicate has helped to define the

limits of Federal authority.'” (citation omitted))). The Jean

Court concluded that "[t]he single finding that the

40 IBRAHIM V. DHS

Government's position lacks substantial justification, like

the determination that a claimant is a 'prevailing party,' thus

operates as a one-time threshold for fee eligibility.” Id. at

160.

In sum, "[a]ny given civil action can have numerous

phases,” as evidenced by the case at hand. Id. at 161. But

the Supreme Court clearly instructed, and almost all courts

have clearly understood,16 that "the EAJA—like other fee-

16 All but two circuits agree that "the EAJA—like other fee-shifting

statutes—favors treating a case as an inclusive whole, rather than as

atomized line-items.” See Glenn v. Comm'r of Soc. Sec., 763 F.3d 494,

498–99 (6th Cir. 2014) (adopting a single inquiry test and noting that

district courts cannot simply compare the number of successful claims to

the number of unsuccessful claims in a single appeal) ("Rather, the

question is whether the government's litigating position . . . is justified

to a degree that could satisfy a reasonable person and whether it was

supported by law and fact.” (internal quotation marks and citations

omitted)); United States v. 515 Granby, LLC, 736 F.3d 309, 315–17 (4th

Cir. 2013) (considering the government's pre- and post-litigation

conduct as a whole and noting that "an unreasonable prelitigation

position will generally lead to an award of attorney's fees under the

EAJA”); United States v. Hurt, 676 F.3d 649, 653–54 (8th Cir. 2012)

(examining government's conduct as a whole); Gomez-Beleno v. Holder,

644 F.3d 139, 145 n.3 (2d Cir. 2011) (considering the government's

position as a whole rather than making separate substantial justification

findings for different stages of the proceedings); Wagner v. Shinseki,

640 F.3d 1255, 1259 (Fed. Cir. 2011) (assessing the government's

litigation position in totality); Saysana v. Gillen, 614 F.3d 1, 5–7 (1st Cir.

2010) (same); Hackett v. Barnhart, 475 F.3d 1166, 1173–74 (10th Cir.

2007) (same); Sims v. Apfel, 238 F.3d 597, 602 (5th Cir. 2001) (same);

United States v. Jones, 125 F.3d 1418, 1428–29 (11th Cir. 1997) (same);

Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 131 (3d Cir. 1993)

(adopting a single inquiry test, though contrary to our holding in this

case, requiring a district court to "evaluate every significant argument

made by an agency ... to determine if the argument is substantially

IBRAHIM V. DHS 41

shifting statutes—favors treating a case as an inclusive

whole, rather than as atomized line-items.” Id. at 161–62.

Our decision in Corbin is inapposite because that case

hinged on jurisdictional features present when we review

agency actions, but not present here. 149 F.3d 1051. In

Corbin, a case involving judicial review of the agency's

denial of disability benefits, we upheld EAJA fee awards that

were apportioned to successive stages of the underlying



justified” as "necessary to . . . determine whether, as a whole, the

Government's position was substantially justified”).

The D.C. and Seventh Circuits stand alone in declining to adopt a

single inquiry test. The D.C. Circuit has rejected a reading of Jean that

would preclude a claim-by-claim determination on the ground that such

a rule would render the EAJA a "virtual nullity” because government

conduct is nearly always grouped with or part of some greater, and

presumably justified, action. Air Transport Ass'n of Canada v. F.A.A.,

156 F.3d 1329, 1332 (D.C. Cir. 1998). In the same vein, the Seventh

Circuit has cautioned against taking "judicial language out of context,”

reasoning that Jean "does not address the question whether allocation is

permissible under the [EAJA], thus allowing an award of fees for the part

of the government's case that was not substantially justified.” Gatimi v.

Holder, 606 F.3d 344, 350 (7th Cir. 2010). We understand these

concerns, but we think that Congress clearly contemplated the denial of

attorneys' fees even where some of the litigation conduct was unjustified

when it used the qualifying term "substantial” rather than "total” or

"complete.” See 28 U.S.C. § 2412(d)(1)(A); see also United States v.

Rubin, 97 F.3d 373, 375–76 (9th Cir. 1996) (affirming the district court's

denial of fees because the government was substantially justified in most,

but not all, of its positions). Further, we conclude that this happenstance

will predominantly affect cases challenging the government agency's

litigation position, and likely have little effect in cases where the

government agency's conduct is unjustified, as EAJA "fees generally

should be awarded where the government's underlying action was

unreasonable even if the government advanced a reasonable litigation

position.” Marolf, 277 F.3d at 1159.

42 IBRAHIM V. DHS

litigation, in which we reversed and remanded for further

proceedings before the agency.

17 Id. at 1052. Because

Corbin prevailed upon judicial review and was the prevailing

party at that stage—whatever the ultimate disposition of his

disability claim—he was entitled to EAJA attorneys' fees.

Id. at 1053. But, the administrative review context is unique

because the different stages of the litigation are reviewed by

different, unconnected quasi-judicial systems. In

administrative review cases, we award fees when we vacate

an administrative determination and require the agency to

conduct new proceedings. See, e.g., Rueda-Menicucci v.

I.N.S., 132 F.3d 493, 495 (9th Cir. 1997) (awarding fees to

prevailing petitioners on a petition for review from a Board

of Immigration Appeals proceeding without regard to

whether they would later succeed on underlying asylum

claims, explaining that "the remand terminates judicial

proceedings and results in the entry of a final judgment”);

Kelly v. Nicholson, 463 F.3d 1349, 1355–56 (Fed. Cir. 2006)

(reversing and remanding denial of EAJA fees after an

erroneous Agent Orange disability determination by the

Department of Veterans Affairs); Former Emps. of Motorola

Ceramic Prods. v. United States, 336 F.3d 1360, 1361 (Fed.

Cir. 2003) (vacating and remanding denial of EAJA fees

after an erroneous analysis of readjustment of benefits by the

Department of Labor). This eligibility for fees arises

whether the plaintiff challenges administrative action under

a statute specifically providing for review, as with the

examples above, or under an umbrella statute authorizing

challenges to agency action, such as the APA. See, e.g.,

17 "Remand” is something of a misnomer, albeit one oft used in

agency cases, as in fact "the civil action seeking judicial review of the

. . . final decision,” Shalala v. Schaefer, 509 U.S. 292, 299 (1993)

(internal citation and quotation marks omitted), is terminated, not

remanded.

IBRAHIM V. DHS 43

Wood v. Burwell, 837 F.3d 969, 977 (9th Cir. 2016)

(granting "prevailing party” status for success on an APA

claim alleging procedural deficiencies, notwithstanding

plaintiffs' later loss on their "substantive” claims). By

contrast, the various stages at issue here were all part of one

litigation in federal court; the case was never returned to an

agency for further proceedings. Therefore, Corbin does not

apply.18

The district court thus erred in its piecemeal approach to

substantial justification. Most fundamentally, the agency

position upon which these going-on-thirteen years of

litigation was based was not justified at all, much less

substantially. The district court correctly recognized as

much, finding: "The original sin—Agent Kelley's mistake

and that he did not learn about his error until his deposition

eight years later—was not reasonable” under the EAJA.

Whether the error is attributable to the failure to train Agent

Kelley, the counter-intuitive nature of the form (check the

categories that do NOT apply), the lack of cross-checking or

other verification procedures, or anti-Muslim animus (Agent

Kelley interviewed Dr. Ibrahim on December 23, 2004, as

part of an International Terrorism Investigation), the precise

cause is irrelevant to, and does not mitigate, the lack of any

basis to place Dr. Ibrahim on the list, nor does it justify a

reduction in fees.19 See Marolf, 277 F.3d at 1159 (holding

18 And even if Corbin did apply to this case, the district court

misapplied Corbin because it evaluated whether each individual

argument at each stage of the litigation was substantially justified, rather

than the government's position at each stage as a whole.

19 We make no findings, nor can we on appeal, as to how this

mistaken placement came about, and we ascribe no nefarious

motivations to the government as an entity. Again, we cannot know on

44 IBRAHIM V. DHS

that EAJA "fees generally should be awarded where the

government's underlying action was unreasonable even if

the government advanced a reasonable litigation position”).

The district court correctly concluded that the

government's litigation position—to defend the

indefensible, its No Fly list error—was not reasonable. As

the district court stated, "[t]he government's defense of such

inadequate due process in Dr. Ibrahim's circumstance—

when she was concededly not a threat to national security—

was not substantially justified.”

Those conclusions should have been the end of the

district court's EAJA eligibility analysis. After the

government engaged in years of scorched earth litigation, it

finally conceded during trial in December 2013 that Dr.

Ibrahim is "not a threat to our country. She does not pose

(and has not posed) a threat of committing an act of

international or domestic terrorism with respect to an

aircraft, a threat to airline passenger or civil aviation

security, or a threat of domestic terrorism.” But the

government knew this in November 2004, when Agent

Kelley completed the form; it knew it in January 2005, when

the DHS agent told Dr. Ibrahim she was not on the No Fly

list; and it was well aware of it two weeks after Dr. Ibrahim

filed the underlying action, when a government agent

ordered her "Remove[d] from ALL watchlisting supported

systems (For terrorist subjects: due to closure of case AND

no nexus to terrorism)” and further stated that Dr. Ibrahim

was not qualified for placement on either the No Fly or TSA

Selectee lists. Yet knowing this, the government essentially



this record precisely why Dr. Ibrahim's name was listed on the TSDB

watchlist to begin with.

IBRAHIM V. DHS 45

doubled-down over the course of the litigation with a noholds-barred defense.

That some of the arguments made along the way by the

government attorneys passed the straight face test until they

were reversed on appeal does not persuade us that the

government's position was substantially justified.20 And the

court is to consider the government agencies' conduct during

20 We do not find that the government's defense of this litigation

was unreasonable at all points of the litigation. Instead, what was not

substantially justified was the government's continued defense of issues

even after the reasons justifying their defense disappeared. For example,

the government was justified in initially raising standing arguments, but

was not justified in continuing to raise the same meritless standing

arguments on numerous occasions once that issue had been definitively

resolved by both our court and the district court. In a similar vein, while

the government may have been justified in defending this litigation and

refusing to tell Dr. Ibrahim her No Fly list status pursuant to its Glomar

policy—a policy whereby the government refuses to confirm or deny the

existence of documents in response to a Freedom of Information Act

request, see N.Y. Times v. U.S. Dep't of Justice, 756 F.3d 100, 105 (2d

Cir. 2014), amended by 758 F.3d 436 (2d Cir. 2014)—any justification

it had to defend Dr. Ibrahim's No Fly list status vanished once she was

made aware of her watchlist statuses and it had admitted its mistake in

2013.

Further, when considering the government's litigation position, we

also consider the government's positions on discovery and other nonmerits issues, i.e., the government's conduct as a whole. See United

States v. Rubin, 97 F.3d 373, 375 (9th Cir. 1996) (citing United States v.

Powell, 379 U.S. 48, 57–58 (1964)) (considering government's conduct

during discovery when performing substantial justification inquiry).

Here, as discussed at length below, the government played discovery

games, made false representations to the court, misused the court's time,

and interfered with the public's right of access to trial. Thus, the

government attorneys' actual conduct during this litigation was ethically

questionable and not substantially justified.

46 IBRAHIM V. DHS

the course of this litigation as well. See 28 U.S.C.

§ 2412(d)(2)(D) ("'position of the United States' means, in

addition to the position taken by the United States in the civil

action, the action or failure to act by the agency upon which

the civil action is based”). From the suit's inception, the

government agencies' actions, including their on-again, offagain placement of Dr. Ibrahim on various government

watchlists; refusal to allow her to reenter the United States

at all, even to attend her own trial; and delay of her

U.S.-born, U.S.-citizen daughter's attendance at trial, were

unreasonable and served only to drive up attorneys' fees.

Indeed, as a consequence of the government's conduct, Dr.

Ibrahim was deposed in London, England, as opposed to the

Northern District of California—which also drove up the

costs and fees.

In sum, neither the agencies' conduct nor the

government's litigation position was substantially

justified.21 The EAJA mandates that attorneys' fees be

21 The partial dissent argues that "Supreme Court precedent requires

that we allow the district court to make [the] determination” as to

whether the government's position was substantially justified.

Concurring & Dissenting Op. at 78 (citing Pierce, 487 U.S. at 560); see

also id. at 78–81. Not so. The dissent is actually quoting from the

portion of the Pierce decision where Justice Scalia is deciding which of

the three general standards of review should apply to the district court's

"substantial justification” determination—de novo, clear error, or abuse

of discretion. Pierce, 487 U.S. at 558. He decides that the abuse of

discretion standard applies because the appropriate degree of deference

is inherent in the standard itself. Id. at 559–63. Here, we applied the

abuse of discretion standard and concluded the district court abused its

discretion. Notably, in Pierce, the Court also declared that an abuse of

discretion standard will "implement our view that a 'request for

attorney's fees should not result in a second major litigation.'” Id. at 563

(quoting Hensley, 461 U.S. at 437). But that is exactly what has

happened here. See infra Part V. We have already engaged in the

IBRAHIM V. DHS 47

awarded to Dr. Ibrahim's attorneys, subject only to

reasonableness review. Jean, 496 U.S. at 161. "It remains

for the district court to determine what fee is 'reasonable.'”

Hensley, 461 U.S. at 433.

B. Reasonableness

In Hensley, the Supreme Court set out a two-pronged

approach for determining the amount of fees to be awarded

when a plaintiff prevails on only some of his claims for relief

or achieves "limited success.” Sorenson v. Mink, 239 F.3d

1140, 1147 (9th Cir. 2001) (citing Hensley, 461 U.S. at 436–

37). First, we ask, "did the plaintiff fail to prevail on claims

that were unrelated to the claims on which he succeeded?”

Hensley, 461 U.S. at 434. This inquiry rests on whether the

"related claims involve a common core of facts or are based

on related legal theories,” Webb v. Sloan, 330 F.3d 1158,

1168 (9th Cir. 2003) (citing Hensley, 461 U.S. at 435), with

"the focus . . . on whether the claims arose out of a common

course of conduct,” id. at 1169 (emphasis added) (citing

Schwarz, 73 F.3d at 903 (interpreting Hensley)). Second, we

ask whether "the plaintiff achieve[d] a level of success that

makes the hours reasonably expended a satisfactory basis for

making a fee award?” Hensley, 461 U.S. at 434. If the court

concludes the prevailing party achieved "excellent results,”

it may permit a full fee award—that is, the entirety of those

hours reasonably expended on both the prevailing and

unsuccessful but related claims. Id. at 435; Schwarz, 73 F.3d

at 905–06.

"unusual expense” of reviewing over 7,000 pages of record and over

1,000 pages of trial exhibits, Pierce, 487 U.S. at 560, and we see no

further need to triplicate this work.

48 IBRAHIM V. DHS

1. "Unsuccessful Claims”

The district court erroneously determined that Dr.

Ibrahim was entitled to reasonable fees and expenses with

respect to only her procedural due process claim, which

provided her with substantial relief, and her related

substantive due process and APA claims. Because Dr.

Ibrahim's equal protection, APA, substantive due process,

and First Amendment claims "would not lead to any greater

relief than [what the district court had] already ordered,” the

district court declined to reach them. The district court then

treated these unreached claims as unsuccessful, even while

acknowledging that Dr. Ibrahim "did not outright lose on

these claims,” and disallowed counsel's reasonable fees and

expenses on the "unrelated” First Amendment and equal

protection claims. This overall approach was error.

The Hensley Court recognized that in complex civil

rights litigation, plaintiffs may raise numerous claims, not all

of which will be successful: "Litigants in good faith may

raise alternative legal grounds for a desired outcome, and the

court's rejection of or failure to reach certain grounds is not

a sufficient reason for reducing a fee. The result is what

matters.” Hensley, 461 U.S. at 435 (emphasis added). And

where, as here, "a plaintiff has obtained excellent results, his

attorney should recover a fully compensatory fee.” Id. The

district court's rationale—that because Dr. Ibrahim won

substantial relief on one claim, and it was therefore

unnecessary to reach her other equally pursued claims that

could also lead to the same relief, no fees were available for

the unreached claim—turns Hensley on its head.

We are aware of no court that has held that a plaintiff

who obtains full relief on some claims, thereby rendering it

unnecessary to reach the remaining claims, "lost” on the

unreached claims. When confronted with this question, our

IBRAHIM V. DHS 49

sister circuits that have addressed the issue have uniformly

declined to adopt the district court's analysis. The Sixth

Circuit "decline[d] the government's invitation to apportion

[plaintiff's] attorney fees to the single claim addressed in

[its] previous opinion.” Sakhawati v. Lynch, 839 F.3d 476,

480 (6th Cir. 2016). The Eighth Circuit also refused to

reduce fees where the district court found in plaintiffs' favor

on their state claim without reaching the federal claims,

because plaintiffs' federal claims "were alternative grounds

for the result the district court reached” and "plaintiffs fully

achieved [their] goal by prevailing on their state

constitutional claim.” Emery v. Hunt, 272 F.3d 1042, 1047

(8th Cir. 2001). And the Seventh Circuit rejected

defendants' argument that plaintiff did not succeed on her

sexual harassment claim where "the court did not find in

[defendant's] favor on the sexual harassment claim; it

merely did not reach the merits of the issue.” Dunning v.

Simmons Airlines, Inc., 62 F.3d 863, 874 (7th Cir. 1995).

We agree with our sister circuits that a district court's

"failure to reach” certain grounds does not make those

grounds "unsuccessful,” and conclude that the district court

clearly erred in holding that Dr. Ibrahim's unreached claims

were "unsuccessful.”

2. Related Claims

The district court and the original panel exacerbated this

error in analyzing whether the claims the district court did

not reach were related to her successful claims. The district

court correctly concluded that Dr. Ibrahim's substantive due

process and APA claims were related to her prevailing

procedural due process claim and allowed recovery of some

of those fees and expenses. Without much analysis,

however, the district court also concluded that her equal

protection and First Amendment claims were not related

50 IBRAHIM V. DHS

"because they involved different evidence, different

theories, and arose from a different alleged course of

conduct.” The three-judge panel stepped into the breach

with its newly devised "mutually exclusive” rationale to

determine that the claims were unrelated because, after trial,

the district court found that Dr. Ibrahim was placed on the

No Fly list due to negligence, and her First Amendment and

equal protection claims alleged intentional discrimination.

The three-judge panel concluded that the two mens rea

requirements were "mutually exclusive.”

But both the district court and the now-withdrawn

opinion failed to follow clear precedent to the contrary. The

Court made clear in Hensley that, while hours spent on an

unsuccessful claim "that is distinct in all respects from [the

plaintiff's] successful claim” should be excluded, "[w]here

a lawsuit consists of related claims, a plaintiff who has won

substantial relief should not have his attorney's fee reduced

simply because the district court did not adopt each

contention raised.” 461 U.S. at 440. Construing the Hensley

Court's statement that claims are "unrelated” if they are

"entirely distinct and separate” from the prevailing claims,

we have held that "related claims involve a common core of

facts or are based on related legal theories.” Webb, 330 F.3d

at 1168 (citations omitted). We do not require commonality

of both facts and law to conclude that claims are related. Id.

Rather "the focus is to be on whether the unsuccessful and

successful claims arose out of the same 'course of conduct.'

If they didn't, they are unrelated under Hensley.” Schwarz,

73 F.3d at 903. The three-judge panel's introduction of the

mutual-exclusivity test is contrary to Supreme Court

IBRAHIM V. DHS 51

precedent,22 our precedent,23 and the precedent of every

other circuit interpreting Hensley that has addressed the

question.24 We are aware of no other court that has adopted

22 See, e.g., Hensley, 461 U.S. at 438 (concluding that, despite the

differences in legal theories and some facts, "[g]iven the interrelated

nature of the facts and legal theories in this case, the District Court did

not err in refusing to apportion the fee award mechanically on the basis

of respondents' success or failure on particular issues”).

23 See, e.g., Webb, 330 F.3d at 1169 (holding that the plaintiff's

unsuccessful false arrest claim was "unquestionably” related to the

successful claims for false imprisonment and malicious prosecution, and

allowing his attorney to recover fees for time spent in pursuit of that

claim because "all [of plaintiff's] claims arose out of a common core of

facts and a common course of conduct: Plaintiff's arrest, detention, and

prosecution”); see also Thorne v. City of El Segundo, 802 F.2d 1131,

1142 (9th Cir. 1986) (reasoning that a police department clerk-typist's

claims for discriminatory hiring and unconstitutionally obtained

information could be related because they both concerned a polygraph

interview she underwent during which the department discussed her

sexual history); cf. Schwarz, 73 F.3d at 902–04 (determining that an

employee's claims of employment discrimination against offices in

Phoenix, Arizona and Portland, Oregon were distinct because they were

predicated on independently discriminatory conduct by different actors,

relating to different employment positions, in different states).

24 See, e.g., Murphy v. Smith, 864 F.3d 583, 586 (7th Cir. 2017)

("Where claims are closely related, however, a plaintiff who obtains

excellent results should recover a fully compensatory fee even if he did

not prevail on every contention in the lawsuit or if a court rejected or did

not reach certain grounds supporting the excellent result.” (citation

omitted)); Sakhawati v. Lynch, 839 F.3d 476, 480 (6th Cir. 2016)

(declining to reduce fees where all of the claims pertained to one asylum

application and related evidence); SecurityPoint Holdings, Inc. v.

Transp. Sec. Admin., 836 F.3d 32, 41 (D.C. Cir. 2016) ("We believe that

[the plaintiff's] petition for review presented only one claim for relief—

that TSA's denial of the cease-and-desist request was unlawful and must

be set aside. Its assertion of several distinct grounds does not create

multiple claims. But even if we treated the various grounds as separate

52 IBRAHIM V. DHS



claims, they are related in the sense meant by Hensley.” (citation

omitted)); Wal-Mart Stores, Inc. v. Barton, 223 F.3d 770, 773 (8th Cir.

2000) (applying Hensley to 42 U.S.C. § 2000e-5(k) and finding that the

plaintiff's "state claims of assault and battery, outrage, and negligent

retention shared a common core of facts with her Title VII claims, all of

which arose from [the defendant's] alleged sexual harassment of [the

plaintiff]”); United States v. Jones, 125 F.3d 1418, 1430 (11th Cir. 1997)

("[U]nder Hensley, a plaintiff who has prevailed against the United

States on one claim may recover for all the hours reasonably expended

on the litigation even though he or she failed to prevail on other claims

involving a common core of facts or related legal theories.”); Jane L. v.

Bangerter, 61 F.3d 1505, 1512 (10th Cir. 1995) ("We have refused to

permit the reduction of an attorneys fee request if successful and

unsuccessful claims are based on a 'common core of facts.' . . . Claims

are also related to each other if based on 'related legal theories.'”

(citations omitted)); Keely v. Merit Sys. Prot. Bd., 793 F.2d 1273, 1275–

76 (Fed. Cir. 1986) (rejecting the government's argument that the court

should reduce attorneys' fees and individually evaluate each of the

plaintiff's separate arguments where the plaintiff only prevailed on one);

Citizens Council of Del. Cty. v. Brinegar, 741 F.2d 584, 596 (3d Cir.

1984) (concluding that "it is clear that there was a sufficient

interrelationship among the essential claims advanced by the plaintiff in

the course of the litigation that the district court was not required to

apportion fees based on the success or failure of any particular legal

argument advanced by the plaintiffs”); cf. Paris v. U.S. Dep't of Hous.

& Urban Dev., 988 F.2d 236, 240 (1st Cir. 1993) (concluding, in the

context of analyzing a related provision of the Fair Housing Act, that if

the case involves what is essentially a single claim arising from "a

common nucleus of operative fact,” and the plaintiff advances separate

legal theories that "are but different statutory avenues to the same goal,”

then all of the time should be compensable), overruled on other grounds

by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health &

Human Res., 532 U.S. 598 (2001).

Only the Second Circuit has interpreted Hensley to allow the

lodestar reductions in cases where multiple claims involve a common

nucleus of fact. Kassim v. City of Schenectady, 415 F.3d 246, 256 (2d

Cir. 2005) ("[A] district judge's authority to reduce the fee awarded to a

prevailing plaintiff below the lodestar by reason of the plaintiff's 'partial

or limited success' is not restricted . . . to cases of multiple discrete

IBRAHIM V. DHS 53

the mutual-exclusivity test, and we now disavow its use as a

standard for relatedness.

All of Dr. Ibrahim's claims arose from a "common

course of conduct” and are therefore related under Hensley.

See Webb, 330 F.3d at 1169. The First Amended Complaint

at bottom was a challenge to "defendants' administration,

management, and implementation of the 'No-Fly List.'”

Specifically, Dr. Ibrahim alleged that the manner in which

the government created, maintained, updated, and

disseminated the No Fly list led to the humiliating treatment

she experienced at SFO in January 2005 and afterwards, as

she was unable to learn whether she was on or off the list or

why she was placed there in the first place. She alleged

several alternative theories for this treatment, five of which

ultimately went to trial against the federal government. That

the government's actions arose from negligence or

unconstitutional animus could not have been known until the

case was tried, and we still do not know whether, in addition

to Agent Kelley's negligence in placing her on the No Fly

list, the government's initial interest in Dr. Ibrahim stemmed

from its allegedly heightened interest in foreign students

from Muslim countries here on U.S. student visas,25 or her

theories . . . .”). The Fourth and Fifth Circuits have not yet reached this

issue. See Vaughns by Vaughns v. Bd. of Educ. of Prince George's Cty.,

770 F.2d 1244, 1245 (4th Cir. 1985) (affirming the district court's fee

determination based on the standard of review, and not reaching whether

its relatedness analysis, which focused on whether the claims arose from

a common course of conduct, was accurate).

25 In opening argument at trial, Dr. Ibrahim's attorney Elizabeth

Pipkin stated:

In another Homeland Security presidential directive,

the president calls for the end of abuse of student visas

54 IBRAHIM V. DHS

husband's recent visit, or her regular attendance at a mosque,

or her involvement in the Islamic Society of Stanford

University, which, if true, would have shown discriminatory

intent. And because the district court did not reach the First

Amendment and equal protection claims, we will never

know whether placement on the TSDB was a result of

discrimination on the basis of her race, religion, country of

origin, or association with Muslims and Muslim groups.

There is no question that all of these claims arise from

the government's common course of conduct toward Dr.

Ibrahim. To hold otherwise would ignore the realities of

lawyering. As here, the key question in a lawsuit is often not

what happened—but why. Before the litigation begins and

while it is ongoing, the plaintiff and her lawyers cannot

know for sure why someone else did something, but may, as

here, have evidence suggesting various possibilities. So, as

here, the plaintiff raises alternative claims and theories as to



and increased the scrutiny of foreign students during

the time that Dr. Ibrahim was studying at Stanford. In

the months prior to the November 2004 presidential

election and continuing up until the inauguration, the

government ramped up its efforts to interrogate

Muslims in America in a national dragnet called the

October Plan, or Operation Front Line.

The government's decision to target foreign students

had a strong effect on the Muslim student community

at Stanford. That community emailed its members,

including Dr. Ibrahim, to advise them that there may

be an increased likelihood that law enforcement would

contact them and that if they were contacted, they

should cooperate.

The district court never made a factual finding regarding whether this

allegation was true.

IBRAHIM V. DHS 55

why something was done, some of which may be ultimately

inconsistent, with regard to a single set of facts. The

plaintiff's claims are then tested by dispositive motions,

discovery, and perhaps (as happened here) trial. The fact

that one claim or theory is eventually determined to be true

does not mean that the claims were unrelated to one another.

It is common to plead that a defendant committed some

act "intentionally, knowingly, or recklessly,” or

simultaneously to bring different claims premised on distinct

mental states. This widely accepted litigation strategy is

accommodated by the clear standard pronounced by the

Supreme Court and previously applied by our court, which

focuses on whether the claims are premised on an "entirely

distinct and separate” set of facts, not whether they are based

on different "mental states.” The analysis in the nowwithdrawn opinion shows that had it applied the correct

standard, it would have recognized that all of Dr. Ibrahim's

claims were based on the same set of facts—the placement

of Dr. Ibrahim's name on the government's watchlists—

regardless of what "mental state” was required to prove each

particular claim. Ibrahim III, 835 F.3d at 1063 ("[I]f the

government negligently placed [Dr.] Ibrahim on its

watchlists because it failed to properly fill out a form, then it

could not at the same time have intentionally placed [Dr.]

Ibrahim on the list based on constitutionally protected

attributes [Dr.] Ibrahim possesses, and vice versa.”).

Allowing hindsight to creep in to fee awards also would

put lawyers in an untenable ethical position. Res judicata

bars claims that could have been raised in an earlier litigation

that arise out of the same "transactional nucleus of facts.”

Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708,

714 (9th Cir. 2001) (internal quotation marks and citation

omitted). Ethical obligations—or perhaps more likely, the

56 IBRAHIM V. DHS

specter of malpractice liability—thus require a lawyer to

bring all reasonably related, viable claims in a single

action.26 But the three-judge panel's "mutually exclusive”

26 Our sister circuits have recognized the difficult task facing

lawyers navigating the complexities of civil rights litigation. The D.C.

Circuit, for example, has emphasized that

[a] lawyer who wins full relief for her client on one of

several related claims . . . is not apt to be criticized

because the court failed to reach some of the grounds,

or even ruled against the client on them. . . . After the

fact, it is of course easier to identify which arguments

were winners and which were losers and state

forcefully how an attorney's time could have been

better spent. But litigation is not an exact science. In

some cases, the lawyer's flagship argument may not

carry the day, while the court embraces a secondary

argument the lawyer rated less favorably. That is

precisely why lawyers raise alternative grounds—a

practice which is explicitly sanctioned by our Rules of

Civil Procedure.

Goos v. Nat'l Ass'n of Realtors, 68 F.3d 1380, 1386 (D.C. Cir. 1995);

see also id. at 1384–86.

The Seventh Circuit similarly has rejected the panel's ex post

approach:

For tactical reasons and out of caution lawyers often

try to state their client's claim in a number of different

ways, some of which may fall by the wayside as the

litigation proceeds. The lawyer has no right to

advance a theory that is completely groundless or has

no factual basis, but if he presents a congeries of

theories each legally and factually plausible, he is not

to be penalized just because some, or even all but one,

are rejected, provided that the one or ones that succeed

give him all that he reasonably could have asked for.

IBRAHIM V. DHS 57

rule raises the possibility that some fraction (perhaps a

substantial one) of these reasonably related, ethically

compelled claims, which a lawyer must research and litigate,

will be excluded from a fee award.

Dr. Ibrahim's lawyers may have violated

their ethical duties and risked malpractice if

they had failed to bring all claims that their

client could present in good faith. See Model

Rules of Prof'l Conduct r. 1.3 cmt. (Am. Bar

Ass'n 2016) ("A lawyer should pursue a

matter on behalf of a client despite

opposition, obstruction or personal

inconvenience to the lawyer, and take

whatever lawful and ethical measures are

required to vindicate a client's cause or

endeavor.”). Dr. Ibrahim and her lawyers

faced an uphill battle. The government

vigorously defended this case, and Dr.

Ibrahim did not have access to meaningful

discovery until a few months before trial,

after years of litigation and two appeals—she

was fighting blind against the Many-Faced

Lenard v. Argento, 808 F.2d 1242, 1245–46 (7th Cir. 1987). Other

circuits are in accord. See, e.g., Jordan v. City of Cleveland, 464 F.3d

584, 604 (6th Cir. 2006) ("[L]itigation is not an 'exact science': Lawyers

cannot preordain which claims will carry the day and which will be

treated less favorably.”); Robinson v. City of Edmond, 160 F.3d 1275,

1283 (10th Cir. 1998) ("Litigants should be given the breathing room to

raise alternative legal grounds without fear that merely raising an

alternative theory will threaten the attorney's subsequent

compensation.”).

58 IBRAHIM V. DHS

Bureaucratic God.27 And as demonstrated by

the complex and longstanding procedural

history, it was not even clear that Dr. Ibrahim

could advance the case beyond the dismissal

stage.

Applying the correct "common course of conduct” test

to Dr. Ibrahim's claims for procedural and substantive due

process, violations of her First Amendment and equal

protection rights and the APA, we conclude that Dr. Ibrahim

meets the first prong of Hensley. All of Dr. Ibrahim's claims

arose from her wrongful placement on the No Fly list, and

are therefore related. Fees for each of these claims are thus

recoverable. All of these claims derive from the

government's interest in Dr. Ibrahim's activities, which led

to her placement on the No Fly list, her placement on and off

various other watchlists (which the district court deemed

"Kafkaesque”), her attempts to learn why she was on the No

Fly list, her attempts to get herself removed from the No Fly

list, and the government's intransigence in setting the record

straight for almost a decade. As the district court found, this

treatment had a "palpable impact, leading to the humiliation,

cuffing, and incarceration of an innocent and incapacitated

air traveler.” Dr. Ibrahim's "litany of troubles” flow directly

from her erroneous placement on the No Fly list, as do all of

the claims that went to trial. None of the claims was distinct

or separable from another, and each claim sought the same

relief Dr. Ibrahim ultimately obtained.

27 See Game of Thrones: The Red Woman (Home Box Office, Inc.

broadcast Apr. 24, 2016).

IBRAHIM V. DHS 59

3. Level of Success

Dr. Ibrahim also satisfied Hensley's second prong

because she "achieved a level of success that makes the

hours reasonably expended a satisfactory basis for making a

fee award.” Sorenson, 239 F.3d at 1147 (internal

punctuation omitted) (quoting Hensley, 461 U.S. at 434).

The district court found that Dr. Ibrahim had only "limited”

success. We disagree.

The achievement of Dr. Ibrahim and her attorneys in

successfully challenging her No Fly list placement and

forcing the government to fix its error was not just

"excellent,” but extraordinary. Hensley, 461 U.S. at 435.

Although this is not a class action, and thus we assess Dr.

Ibrahim's individual success, the pathbreaking nature of her

lawsuit underscores her achievement. Dr. Ibrahim was the

first person ever to force the government to admit a terrorist

watchlisting mistake; to obtain significant discovery

regarding how the federal watchlisting system works; to

proceed to trial regarding a watchlisting mistake; to force the

government to trace and correct all erroneous records in its

customer watchlists and databases; to require the

government to inform a watchlisted individual of her TSDB

status; and to admit that it has secret exceptions to the

watchlisting reasonable suspicion standard. Dr. Ibrahim, in

her first appeal to our court, established that district courts

have jurisdiction over challenges to placement on terrorist

watchlists, including the No Fly list. Ibrahim I, 538 F.3d at

1254–57. In her second appeal, she established that even

aliens who voluntarily depart from the U.S. have standing to

bring constitutional claims when they have had a significant

voluntary connection with the U.S. Ibrahim II, 669 F.3d at

993–94. Moreover, on her journey, Dr. Ibrahim established

important principles of law, benefiting future individuals

60 IBRAHIM V. DHS

wrongfully placed on government watchlists. Previously,

most such challenges failed at the pleading stage. See, e.g.,

Shearson v. Holder, 725 F.3d 588 (6th Cir. 2013); Rahman

v. Chertoff, No. 05 C 3761, 2010 WL 1335434 (N.D. Ill.

Mar. 31, 2010); Scherfen v. U.S. Dep't of Homeland Sec.,

No. 3:CV-08-1554, 2010 WL 456784 (M.D. Penn. Feb. 2,

2010); Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119

(W.D. Wash. 2005).

Dr. Ibrahim's victory affected more than just her case—

it affected the way all individuals can contest their placement

on these watchlists.

28 The EAJA

rests on the premise that a party who chooses

to litigate an issue against the Government is

not only representing his or her own vested

interest but is also refining and formulating

public policy. An adjudication or civil action

provides a concrete, adversarial test of

Government regulation and thereby insures

the legitimacy and fairness of the law.

Escobar Ruiz v. I.N.S., 813 F.2d 283, 288 (9th Cir. 1987)

(quoting H.R. Rep. No. 1418, at 10 (1980)). Dr. Ibrahim

refined federal watchlisting policy by creating a roadmap for

other similarly situated plaintiffs to seek judicial redress for

alleged wrongful placement on government watchlists.

29

28 The government has since changed its policy regarding contesting

placement on the No Fly list. It now allows certain categories of

individuals to challenge their No Fly list status.

29 For example, in Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or.

2014), where U.S. citizens and lawful permanent residents challenged

their allegedly wrongful placement on the No Fly list, the district court

IBRAHIM V. DHS 61

The significance of Dr. Ibrahim's roadmap cannot be

overstated. Any person could have the misfortune of being

mistakenly placed on a government watchlist,30 and the

consequences are severe.31 Placement on the No Fly list, if

held at the summary judgment stage that the DHS Traveler Redress

Inquiry Program process "falls far short of satisfying the requirements of

due process,” and that "the absence of any meaningful procedures to

afford Plaintiffs the opportunity to contest their placement on the No-Fly

List violates Plaintiffs' rights to procedural due process.” Id. at 1161. In

evaluating the procedural due process factors from Mathews v. Eldridge,

424 U.S. 319 (1976), the Latif court cited to Dr. Ibrahim's case, the only

available case involving a due process challenge to watchlisting

procedures, to find that the plaintiffs had been deprived of their liberty

interests in travel, and that the DHS redress process contains a high risk

of erroneous deprivation of constitutionally-protected interests. 28 F.

Supp. 3d at 1148, 1152–53. Today, relief from No Fly list errors is

widely recognized as available. See, e.g., Murtaza Hussain, How a

Young American Escaped the No Fly List, Intercept (Jan. 21, 2016,

4:30 AM), https://theintercept.com/2016/01/21/how-a-young-americanescaped-the-No-Fly-list/.

30 As of 2014, it was reported that there are 680,000 individuals

listed in the TSDB and 47,000 individuals listed on the No Fly list, and

that these lists are littered with errors. See Ibrahim II, 669 F.3d at 990

(noting that there are significant numbers of erroneous placements on the

federal watchlists).

31 Placement on the No Fly list can also affect an individual's visa

eligibility, lead to arrest and temporary incarceration, and be considered

in the probable cause inquiry of a bail determination. See United States

v. Duque, No. CR-09-265-D, 2009 WL 3698127, at *5 (W.D. Okla. Nov.

2, 2009) (describing presence on the VGTOF as part of "officers'

collective knowledge” reasonably used to determine probable cause for

an arrest). What is more, "[the U.S. government] shares the TSDB

[watchlisting database] with 22 foreign governments,” so there are

doubtless international repercussions even if a listed person never tries

to enter the United States, fly over U.S. airspace, or use a U.S. carrier.

Ibrahim II, 669 F.3d at 993.

62 IBRAHIM V. DHS

left unchanged, prevents an individual from ever boarding

an airplane that touches the vast expanse of U.S. airspace.

Travel by air has become a normal part of our lives, whether

for work, vacations, funerals, weddings, or to visit friends

and family. In 2017 alone, there were 728 million airline

passengers in the United States.32 It is debilitating to lose

the option to fly to one's intended destination. Today, those

misplaced on the No Fly list can contest that placement, and,

if misplaced, regain their right to flight. See Saenz v. Roe,

526 U.S. 489, 498 (1999) ("[T]he 'constitutional right to

travel from one State to another' is firmly embedded in our

jurisprudence.” (quoting United States v. Guest, 383 U.S.

745, 757 (1966))).

A full award of attorneys' fees here is consistent with the

EAJA's goal of creating a level playing field in cases in

which there is an imbalance of power and resources. "The

EAJA grew out of a concern for the unequal position of the

individual vis à vis an insensitive and ever-expanding

governmental bureaucracy. The House Report expresses

concern about the fact that . . . the government with its

greater resources and expertise can in effect coerce

compliance with its position.” Escobar Ruiz, 813 F.2d at

288 (internal quotation marks and citation omitted). Dr.

Ibrahim—a professor and person of ordinary means—did

Dr. Ibrahim suffered these consequences. She was deprived of her

right to travel, Kent v. Dulles, 357 U.S. 116, 125 (1958): she was unable

to return to Stanford to pursue her degree; forced to leave the United

States permanently, without warning, after living here for thirteen years;

and not allowed to return to testify at her own trial. She was arrested,

Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004), and humiliated, Paul v.

Davis, 424 U.S. 693, 701, 711 (1976).

32 See Airline Activity: National Summary (U.S. Flights), Bureau

Transp. Stats., https://www.transtats.bts.gov/ (last visited July 26, 2018).

IBRAHIM V. DHS 63

not have the resources to pay an attorney to pursue her

claims, which ultimately cost more than $3.6 million dollars

to litigate. And the small seventeen-lawyer law firm that

represented her, McManis Faulkner, had similarly limited

resources, but, when others refused, they agreed to take on

her case, uncertain whether they would ever be

compensated. On the other side of the table was the

government and its virtually unlimited resources. The

government had a team of twenty-six lawyers—more

lawyers than McManis Faulkner employed—and spent at

least 13,400 hours—in other words, 558 days of one person

working 24 hours a day—vigorously defending this

litigation.

Accordingly, we find that Dr. Ibrahim achieved excellent

results and is therefore entitled to reasonable fees consistent

with that outcome.

C. Bad Faith

Generally, attorneys' fees are capped under the EAJA at

$125 per hour. 28 U.S.C. § 2412(d)(2)(A)(ii). The EAJA

provides, however, that "[t]he United States shall be liable

for such fees and expenses to the same extent that any other

party would be liable under the common law.” 28 U.S.C.

§ 2412(b). Thus, under the common law a court may assess

attorneys' fees against the government if it has "acted in bad

faith, vexatiously, wantonly, or for oppressive reasons.”

Rodriguez v. United States, 542 F.3d 704, 709 (9th Cir.

2008) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45–

46 (1991)). "[W]e hold the government to the same standard

of good faith that we demand of all non-governmental

parties.” Id. The purpose of such an award is to "deter

abusive litigation in the future, thereby avoiding harassment

and protecting the integrity of the judicial process.”

Copeland v. Martinez, 603 F.2d 981, 984 (D.C. Cir. 1979).

64 IBRAHIM V. DHS

"The district court may award attorney fees at market rates

for the entire course of litigation, including time spent

preparing, defending, and appealing the two awards of

attorney fees, if it finds that the fees incurred during the

various phases of litigation are in some way traceable to the

[government's] bad faith.” Brown v. Sullivan, 916 F.2d 492,

497 (9th Cir. 1990). And in evaluating whether the

government acted in bad faith, we may examine the

government's actions that precipitated the litigation, as well

as the litigation itself. Rawlings v. Heckler, 725 F.2d 1192,

1195–96 (9th Cir. 1984); see also Hall v. Cole, 412 U.S. 1,

15 (1973) (concluding that "the dilatory action of the union

and its officers” in expelling an individual from the union

following his resolutions unsuccessfully condemning union

management's alleged undemocratic and short sighted

policies constituted bad faith (internal quotation marks and

citation omitted)); Dogherra v. Safeway Stores, Inc.,

679 F.2d 1293, 1298 (9th Cir. 1982) (concluding that an

employer would have acted in bad faith if it pursued a

defense of an action based on a lie).

"A finding of bad faith is warranted where an attorney

knowingly or recklessly raises a frivolous argument, or

argues a meritorious claim for the purpose of harassing an

opponent.” Primus Auto. Fin. Servs., Inc. v. Batarse,

115 F.3d 644, 649 (9th Cir. 1997) (internal quotation marks

and citation omitted). "Mere recklessness does not alone

constitute bad faith; rather, an award of attorney's fees is

justified when reckless conduct is combined with an

additional factor such as frivolousness, harassment, or an

improper purpose.” Rodriguez, 542 F.3d at 709 (internal

quotation marks omitted) (quoting Fink v. Gomez, 239 F.3d

989, 993–94 (9th Cir. 2001)). It is also shown when litigants

disregard the judicial process. Brown, 916 F.2d at 496

(concluding that the "cumulative effect” of the Appeals

IBRAHIM V. DHS 65

Council's review of a claim for social security benefits,

including the "failure to review a tape of an ALJ's hearing,

a statutory duty, and other acts that caused delay and

necessitated the filing and hearing of additional motions,

viz., the Secretary's delay in producing documents and in

transcribing the tape” constituted bad faith); see also Octane

Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct.

1749, 1758 (2014) (allowing fee-shifting for willful

disobedience of a court's order); Beaudry Motor Co. v. Abko

Props., Inc., 780 F.2d 751, 756 (9th Cir. 1986) (bringing a

case barred by the statute of limitations); Toombs v. Leone,

777 F.2d 465, 471–72 (9th Cir. 1985) (deliberately failing to

comply with local rules regarding exchange of exhibits);

Int'l Union of Petroleum & Indus. Workers v. W. Indus.

Maint., Inc., 707 F.2d 425, 428–29 (9th Cir. 1983) (refusing

to abide by arbitrator's award).

Though the district court cited some of this relevant case

law, including Rodriguez, Chambers, and Brown, it

erroneously applied a piecemeal approach to its bad faith

determination in conflict with the cases it cited. See

Rodriguez, 542 F.3d at 712. We have long established that

to make a bad faith determination, we must review the

totality of the government's conduct. See Brown, 916 F.2d

at 496; see also Rawlings, 725 F.2d at 1196. However, "it is

unnecessary to find that every aspect of a case is litigated by

a party in bad faith in order to find bad faith by that party.”

Rodriguez, 542 F.3d at 712.

The district court clearly erred by failing to consider the

totality of the government's conduct, particularly its

comportment after discovering Agent Kelley's error. See

Mendenhall v. Nat'l Transp. Safety Bd., 92 F.3d 871 (9th Cir.

66 IBRAHIM V. DHS

1996).33 In Mendenhall, we held that a government agency,

there the FAA, acted in bad faith, thereby allowing the

prevailing party, Mendenhall, to recover fees at a reasonable

market rate. We held that "[t]he moment the FAA

acknowledged” that its complaint against her was baseless,

"the agency was no longer justified in pursuing its action.”

Id. at 877. "The agency's continuation of an action it knew

to be baseless . . . is a prime example of bad faith.” Id.

(internal quotation marks omitted) (quoting Brown, 916 F.2d

at 495–96).

The only post-litigation agency conduct that the district

court considered was whether the government obstructed Dr.

Ibrahim or her daughter, Raihan, from appearing at trial.

The court unreasonably concluded, at least with respect to

Raihan, that there was no evidence that the government did

so. That conclusion by the district court is "without support

in inferences that may be drawn from the facts in the record”

and is thus clearly erroneous. Crittenden v. Chappell,

804 F.3d 998, 1012 (9th Cir. 2015). Dr. Ibrahim's daughter,

a U.S. citizen with a U.S. passport, was flagged by the

33 The district court made no findings as to whether the agencies

acted in bad faith before litigation, and we do not have a record basis

upon which to consider this argument. As the district court speculated,

however, the government's initial interest in Dr. Ibrahim may have

rested on shaky constitutional grounds because it may have been

motivated by racial or religious animus. Dr. Ibrahim alleged that, at the

time Agent Kelley first investigated Dr. Ibrahim for potential

watchlisting placement, the government had a heightened interest in

foreign students like her who were in the United States from Muslim

countries on U.S. student visas. Stanford University had specifically

contacted these students, warning them of the government's potential

interest. However, because the district court did not reach this issue

despite having more familiarity with the extensive record, we cannot

conclude that the government's initial interest in Dr. Ibrahim was in bad

faith.

IBRAHIM V. DHS 67

National Targeting Center (NTC) as potentially inadmissible

to the United States. NTC determined that she had been

listed in the TSDB database by other government entities as

an individual about whom those agencies possessed

"substantive 'derogatory' information” that "may be

relevant to an admissibility determination under the

Immigration and Nationality Act.” But, as a U.S. citizen, Dr.

Ibrahim's daughter clearly was not subject to the INA.

Although Dr. Ibrahim's daughter carried a U.S. passport

and U.S. Customs and Border Protection recognized that she

appeared to be a U.S. citizen, NTC requested that Philippine

Airlines perform additional screening of her in the following

e-mail:

[Subject line:] POSSIBLE NO BOARD

REQUESTPNR WNDYJS

[Body:] NOTICE TO AIR CARRIER The

[DHS and U.S. Customs and Border

Protection] recommends the airline to contact

[the carrier liaison group] when the following

passenger shows up to check in . . . .

After Philippine Airlines received this notice, Raihan was

not permitted to board her flight, causing her to miss her

mother's trial, where she had been listed as a witness. The

government did not update the TSDB to reflect that Dr.

Ibrahim's daughter was a U.S. citizen until after it had

purportedly investigated the situation.

The district court also disregarded the government's

response to Agent Kelley's error once the error was

discovered. On remand, the district court should take into

account in its analysis of bad faith the government's conduct

together with the consequences Dr. Ibrahim suffered as a

68 IBRAHIM V. DHS

result. For example, the district court failed to consider the

February 2006 order to remove Dr. Ibrahim from all

watchlist databases because she had "no nexus to terrorism.”

Despite this order, the government continued to place Dr.

Ibrahim on and off federal watchlists, providing no

reasonable explanation for Dr. Ibrahim's never-ending

transitions in watchlist status. Further, the only justification

for her continued watchlist placement is claimed to be a state

secret. This assertion begs the question: Why was Dr.

Ibrahim added to any watchlist once the government

determined she was not a threat? Moreover, was there any

justification for her seemingly random addition to and

removal from watchlists? The district court should also

consider the government's failure to remedy its own error

until being ordered to do so and its failure to inform Agent

Kelley of his mistake for eight years.34

The district court also wrongly rejected as a basis for bad

faith the government's numerous requests for dismissal on

standing grounds post-Ibrahim II, where we determined

unequivocally that Dr. Ibrahim had Article III standing even

though she voluntarily left the United States. The

government knowingly pursued baseless standing arguments

in its third motion to dismiss, its motion for summary

judgment, statements during trial, and post-trial proposed

findings of fact and conclusions of law. The district court

found that the government's position was "unreasonable,”

particularly after it "continue[d] to seek dismissal based on

34 Even after Agent Kelley learned of his mistake, Agent Kelley

never reviewed his old files to see if he had accidentally nominated

others to the No Fly list in the hope it was a one-time mistake. But Agent

Kelley's hope was not grounded in reality. If Agent Kelley nominated

Dr. Ibrahim because he misread the form, this may well not have been a

one-time event—he likely would have made the same mistake other

times he used the same form.

IBRAHIM V. DHS 69

lack of standing in the face of our court of appeal's

decision,” but it did not account for this unreasonableness in

its bad faith determination. See Ibrahim II, 669 F.3d at 997.

This was contrary to our longstanding precedent that when

an attorney knowingly or recklessly raises frivolous

arguments, a finding of bad faith is warranted. Fink,

239 F.3d at 993–94; see also Optyl Eyewear Fashion Int'l

Corp. v. Style Cos., 760 F.2d 1045, 1052 (9th Cir. 1985). As

the district court acknowledged, "the government should

have sought review by the United States Supreme Court,”

rather than to repeatedly assert an argument for dismissal it

knew to be baseless.

Although the district court concluded that "the

government was wrong to assure all that it would not rely on

state-secrets evidence and then reverse course and seek

dismissal at summary judgment,” it incorrectly found that

the error was not knowingly or recklessly made. The

government falsely represented to both the district court and

to Dr. Ibrahim's counsel—orally in court and in written

filings—that it would not rely on evidence withheld on the

basis of a privilege to "prevail in this action.”35 And yet,

after these representations, the government raised the very

35 The government explicitly stated in a response to a court order

asking the government to confirm its position on this very question:

Defendants affirm that they will not rely on any

information they have withheld on grounds of

privilege from Plaintiff in response to a discovery

request in this case. Defendants are mindful of the

Court's December 20, 2012 ruling (Dkt. [No.] 399)

that the Government may not affirmatively seek to

prevail in this action based upon information that has

been withheld on grounds of privilege, and have acted

in a manner consistent with that ruling in both the

assertion of privilege and summary judgment briefing.

70 IBRAHIM V. DHS

argument it had promised to forego. This is precisely the

type of "abusive litigation” disavowed in the EAJA, which

is focused on "protecting the integrity of the judicial

process.” Copeland, 603 F.2d at 984 (concluding that the

government was entitled to bad faith fees where the plaintiff

brought a frivolous suit under Title VII of the Civil Rights

Act of 1964 because the purpose of a fee award under the

bad faith exception includes "protecting the integrity of the

judicial process”).

The district court also clearly erred in concluding the

government's privilege assertions were made in good faith

by considering only the merits of the privilege arguments

themselves ("some were upheld, some were overruled”).

The district court disregarded the government's stubborn

refusal to produce discovery even after the district court

ordered it produced. But "willful disobedience of a court

order” supports a bad faith finding. Octane Fitness, LLC,

134 S. Ct. at 1758 (citation omitted); see also Hutto v.

Finney, 437 U.S. 678, 689 n.14 (1978) (noting that a court

can "award attorney's fees against a party who shows bad

faith by delaying or disrupting the litigation or by hampering

enforcement of a court order”). Here, the government

refused to produce evidence designated "sensitive security

information” (SSI), even after Dr. Ibrahim's attorneys

obtained the requisite security clearance and the court

ordered the government to produce discovery. Contrary to

its April 2014 bad faith finding, the district court itself, in a

December 20, 2012 order, admonished the government for

its "persistent and stubborn refusal to follow the statute” that

IBRAHIM V. DHS 71

required the government to produce this information in these

circumstances.36

The district court's 2012 reprimand had little effect on

the government's conduct. After this order, the government

continued to drag its feet and refused to produce any

privileged information—which Dr. Ibrahim's attorneys were

cleared to review—because it wanted to renegotiate an

already-in-place protective order. The district court, noting

its dissatisfaction with the government's handling of this

litigation in 2013, emphasized that the government had

"once again miss[ed] a deadline to produce materials in this

long-pending action.”

The government also refused to comply with the district

court's order to produce Dr. Ibrahim's current watchlist

status until it was compelled to do so. Dr. Ibrahim should

not have been required to pursue a motion to compel to

require the government to produce this information,

especially when the government's justifications for refusing

to produce it were baseless. The government first argued

that Dr. Ibrahim did not have standing to assert a right to

learn the status of her No Fly list placement—a meritless

reassertion of a settled issue. The government alternatively

argued that her historical watchlist status was irrelevant to

this case—a plainly frivolous contention given that Dr.

36 Dr. Ibrahim also argues that the government acted in bad faith by

giving the district court secret evidence and secret case law. While the

district court ultimately held that the government was not justified in

these ex parte communications, it is not clear that such communications

were so clearly precluded by precedent that the ex parte communications

were outside the bounds of acceptable conduct.

72 IBRAHIM V. DHS

Ibrahim's watchlist status is at the heart of this dispute.

These actions, too, support a bad faith finding.

On remand, when analyzing the government's litigation

conduct through a totality of the circumstances lens, the

district court must also consider other relevant conduct,

including the government's abuse of the discovery

process;37 interference with the public's right of access to

trial by making at least ten motions to close the courtroom,

see Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122,

1135 (9th Cir. 2003); accord Globe Newspaper Co. v.

Superior Court, 457 U.S. 596, 606–07 (1982);38 and misuse

of a summary judgment hearing to discuss tangential issues

unrelated to the merits of the summary judgment motion.

Finally, the district court erred in failing to consider

whether the government's position as a whole was in good

faith. Though the government may have had a legitimate

basis to defend this litigation initially, whether the

government's defense of this litigation was ever in good

faith is a different question from whether it was always in

good faith. Once the government discovers that its litigation

position is baseless, it may not continue to defend it.

Mendenhall, 92 F.3d at 877. On remand, the district court

37 For example, the government also made depositions exceedingly

difficult by lodging over 200 objections and instructions not to answer

to questions.

38 "[H]istorically both civil and criminal trials have been

presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555, 580 n.17 (1980) (plurality opinion); see also id. at 596 (Brennan, J.,

concurring in judgment) (emphasizing value of open civil proceedings);

id. at 599 (Stewart, J., concurring in judgment) (remarking that the First

Amendment provides a right of access to civil and criminal trials).

IBRAHIM V. DHS 73

must consider whether the government had a good faith basis

to defend its No Fly list error as the litigation evolved.

In sum, the district court's ruling that the government did

not act in bad faith was in error because it was incomplete.

The district court focused primarily upon Agent Kelley's

"unknowing” placement of Dr. Ibrahim's name on the No

Fly list, which it deemed "the original sin,” rather than

considering the "totality” of the government's conduct,

"including conduct 'prelitigation and during trial.'”

Rodriguez, 542 F.3d at 712 (emphasis removed) (citations

omitted); see also Rawlings, 725 F.2d at 1196 (opining that

when evaluating bad faith we must consider the "totality of

the circumstances”). And this conduct should have included

both an analysis of the government agencies' and its legal

representatives' conduct. Dr. Ibrahim should not have had

to endure over a decade of contentious litigation, two trips to

the court of appeals, extensive discovery, over 800 docket

entries amounting to many thousands of pages of record, and

a weeklong trial the government precluded her (and her

U.S.-citizen daughter) from attending, only to come full

circle to the government's concession that she never

belonged on the No Fly list at all—that she is not and never

was a terrorist or threat to airline passenger or civil aviation

security. It should not have taken a court order to require the

government to "cleans[e] and/or correct[] . . . the mistaken

2004 derogatory designation” of Dr. Ibrahim, which had

spread like an insidious virus through numerous government

watchlists.

V.

The district court's piecemeal award of attorneys' fees in

this case runs afoul of the Supreme Court's admonition that

"[a] request for attorney's fees should not result in a second

major litigation.” Hensley, 461 U.S. at 437. In this request

74 IBRAHIM V. DHS

for attorneys' fees alone, three courts, both a three-judge

panel of our court and an en banc panel, fifteen judges, and

one special master have had to consider the merits of this

claim while the attorneys' fees and costs continue to mount.

The district court and original panel's substantive

determination of issues are precisely the type of "second

major litigation” that the Hensley Court directed us to avoid.

That is not to say that all of the special master's findings

and recommended fee reductions accepted by the district

court were incorrect. As the Supreme Court noted in

Hensley, consideration of the twelve factors laid out in

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,

717–19 (5th Cir. 1974), abrogated on different grounds by

Blanchard v. Bergeron, 489 U.S. 87 (1989),

39 was entirely

appropriate. 461 U.S. at 429–30. For example, the special

master did not err in considering whether there was

duplicative or block billing. However, when revisiting this

case, the fee reductions should not be so pervasive that they

completely eliminate the reasonable fees to which Dr.

Ibrahim's attorneys are entitled.

When the district court recalculates these fees, the

calculation should acknowledge that Dr. Ibrahim and her

lawyers, facing overwhelming odds, won a groundbreaking

39 The Johnson factors are: (1) the time and labor required; (2) the

novelty and difficulty of the questions; (3) the skill requisite to perform

the legal service properly; (4) the preclusion of other employment;

(5) the customary fee in the community for similar work; (6) the fixed or

contingent nature of the fee; (7) time limitations imposed by the client or

the circumstances; (8) the amount involved and the results obtained;

(9) the experience, reputation, and ability of the attorneys; (10) the

"undesirability” of the case; (11) the nature and length of the professional

relationship with the client; and (12) awards in similar cases. Johnson,

488 F.2d at 717–19.

IBRAHIM V. DHS 75

victory, and that they are entitled to the fees they've earned

and the vast majority of fees they requested. Cf. Moreno v.

City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008)

("The district court's inquiry must be limited to determining

whether the fees requested by this particular legal team are

justified for the particular work performed and the results

achieved in this particular case.”).

Outcome:

We therefore REVERSE, VACATE the award of

attorneys’ fees, and REMAND 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 in accordance with this opinion.40

Plaintiff's Experts:

Defendant's Experts:

Comments:

---

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About This Case

What was the outcome of DR. RAHINAH IBRAHIM v. U.S. DEPARTMENT OF HOMELAND SECURI...?

The outcome was: We therefore REVERSE, VACATE the award of attorneys’ fees, and REMAND 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 in accordance with this opinion.40

Which court heard DR. RAHINAH IBRAHIM v. U.S. DEPARTMENT OF HOMELAND SECURI...?

This case was heard in center><h4><b> UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT </b> <br> <font color="green"><i>On appeal from The United States District Court for the Northern District of California </i></font></center></h4>, CA. The presiding judge was Kim McLane Wardlaw.

Who were the attorneys in DR. RAHINAH IBRAHIM v. U.S. DEPARTMENT OF HOMELAND SECURI...?

Plaintiff's attorney: Teal Luthy Miller (argued) and Ye-Ting Woo, Assistant United States Attorneys; Tessa M. Gorman, Acting United States Attorney, Western District of Washington; United States Attorney’s Office. Defendant's attorney: Denver, CO - Best Criminal Defense Lawyer Directory.

When was DR. RAHINAH IBRAHIM v. U.S. DEPARTMENT OF HOMELAND SECURI... decided?

This case was decided on January 15, 2022.