Quarrel Over Fees Begins in Terror Watch List Case

     SAN FRANCISCO (CN) - Attorneys who challenged the inclusion of a former Stanford graduate student on various terror watch lists asked a federal judge to have the U.S. government pay them nearly $4 million for continued "evidence of bad faith."
     In a modern-day version of David taking on Goliath, Rahinah Ibrahim successfully fought a mistake by an FBI agent that landed her on a terrorist database and the Transportation Security Administration's no-fly list, and got her booted out of the United States in 2005.
     Her pro bono lawyers with McManis Faulkner requested $3.9 million in attorneys' fees and expenses related to the eight-year case, U.S. District Judge William Alsup admonished those lawyers Wednesday for violating local court rules by not meeting with the government to hash out the attorney fees issue first.
     This mistake, combined with "a fee petition that is grossly overbroad even to the point of seeking double recovery," would justify tossing the petition, Alsup said.
     The judge also noted Ibrahim's lack of success on some claims. While the attorneys were entitled to some payment, it would be "substantially less than requested, meaning not the whopping $3.67 million in fees and $294,000 in expenses sought," the 19-page order states.
     "It would be unfair to saddle the government with $3.67 million in fees - or anything close to it - when a number of counsel's fee requests appear to be associated with claims Dr. Ibrahim did not prevail on (e.g., First Amendment), other proceedings (e.g., United States Court of Appeals District of Columbia Circuit), overstaffing (e.g., fees for four plaintiff's attorneys conferencing with each other), and non-attorney tasks (e.g., file organization or managing data in CaseMap)," Alsup added (parentheses in original).
     Declining to find the government has continuously acted in bad faith since the FBI's initial surveillance of Ibrahim a decade ago, Alsup ordered the parties to agree on a more reasonable award.
     McManis Faulkner partner Elizabeth Pipkin countered Thursday that her team has new evidence in support of the bad-faith argument, proving that the government had not always been honest during case.
     The 53-page, partially sealed request for reconsideration points to a declaration of compliance filed Tuesday by the Justice Department - which confirms the removal of Ibrahim's name from all government watch lists as Alsup ordered in January. Pipkin said this document revealed for the first time inconsistencies between the government's assertions during the case and the reality.
     Specifically, that Ibrahim's name appeared on far more watch lists than the government admitted years ago during the discovery process, according to the motion. A State Department declaration that Ibrahim's visa applications were denied because she engaged in terrorism also directly contradicts both the government's assertions and Alsup's finding that Dr. Ibrahim was not a threat to the United States, Pipkin said.
     "The discrepancies revealed in the compliance declaration are material because they are the latest evidence of government bad faith and therefore relevant to the analysis of that issue, including whether defendants 'argued meritorious claim for the purpose of harassing an opponent,'" the motion states, citing the 9th Circuit 2008 opinion in Rodriguez v. United States. "In particular, the State Department declaration shows the depths to which defendants are willing to go to avoid acknowledging what they already were forced to admit publicly: that Rahinah Ibrahim is not a terrorist threat, and that defendants lack even reasonable suspicion that she is involved in terrorist activity. For these reasons, reconsideration is warranted."
     Pipkin also urged Alsup to rethink whether Ibrahim had prevailed enough to warrant nearly $4 million for McManis Faulkner.
     "Dr. Ibrahim's victory is substantial, given that she is apparently the first and only person in the world to have successfully forced the United States to publicly admit a watchlisting mistake, to trace and correct all erroneous records residing in dozens of terrorist watchlists and databases, and to inform the erroneously watchlisted individual of her status," Pipkin wrote. "Dr. Ibrahim's results were not just excellent, they were extraordinary."