En Banc Ninth Circuit to Revisit No-Fly Case Fee Flap

SAN FRANCISCO – The en banc Ninth Circuit will rehear whether the U.S. government owes a Malaysian professor attorney fees and costs in her fight against being unfairly placed on the no-fly list and other terrorist databases.

Rahinah Ibrahim tapped the firm McManis Faulkner for her case after TSA agents barred her from boarding a flight out of San Francisco in 2005 to attend a conference in Hawaii.

A professor at the University Putra Malaysia in Serdang, Ibrahim had been in California as part of doctoral program at Stanford University.

Officials eventually let Ibrahim return to Malaysia, but they revoked her student visa shortly thereafter – keeping her from returning to Stanford to finish her thesis.

U.S. District Judge William Alsup found in 2014 that Ibrahim had been illegally placed on the no-fly list and a plethora of other government watch lists and terror databases. The Justice Department admitted that an FBI agent’s goof led to blacklisting Ibrahim, and Alsup ordered Ibrahim removed from all databases and lists.

McManis Faulkner claimed victory – despite losing key constitutional claims – and asked for more than $3.9 million in attorneys’ fees and costs. Alsup meanwhile called the demand “grossly broad,” and ordered both parties to submit detailed timecards to determine how much U.S. taxpayers should cough up.

After months of wrangling, Alsup appointed special master Gina Moon of the San Francisco firm Clarence Dyer & Cohen to sort it out. Moon issued a 117-page report recommending $419,987.36 for McManis Faulkner, which Alsup accepted in full.

Undeterred, Ibrahim’s lawyers demanded another $85,467.50 for the work they did objecting to Moon’s report. Alsup rejected that move outright.

A three-judge Ninth Circuit panel partly reversed Alsup in 2016, finding it was error to disallow fees “for discrete positions taken by the government because, in [his] view, the government’s positions in each instance were substantially justified.”

The panel citied the U.S. Supreme Court’s 1990 decision in Commissioner INS v. Jean, which they said requires a judge to consider the case for fee eligibility as an inclusive whole.

That created a circuit split between the Ninth and the D.C. and Seventh circuits, however, which is presumably one reason why the appellate court voted to rehear the case en banc.

The 1-page order, issued by Chief Circuit Judge Sidney Thomas late Friday, did not clarify other than to say the panel’s opinion can no longer be cited as precedent by any court in the circuit.

The en banc court may also address where the panel sided with Alsup: that the government did not act in bad faith by placing Ibrahim on the no-fly list, or by asserting that she lacked standing to challenge her placement on the list.

Without a finding of bad faith, the Equal Access to Justice Act caps recovery of attorneys’ fees at $125 per hour.

The panel said because no court had ever held a foreign national like Ibrahim possessed the right to challenge their placement on U.S. watchlists – mistaken or not – it wasn’t bad faith of the government to say she lacked the right.

Thomas did not indicate when the en banc rehearing will take place.

 

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