A recent Law 360 story, “Atty Gets Second Chance to Boost Fees in No-Fly List Case,” reports that the Ninth Circuit has kicked back an attorneys’ fee award for lawyers who represented a Malaysian woman fighting her wrongful inclusion on the federal government's “no fly” list, finding the lower court made errors of law when it rejected the firm’s request for $3.8 million in fees.
 
The appeals court said in an opinion that the lower court used the wrong standard for awarding attorneys’ fees under the Equal Access to Justice Act.  Specifically, the lower court should not have reduced the award based on the fact that the government was “substantially justified” in assuming certain positions throughout the litigation, but should have instead made a blanket “substantial justification determination” for the case as a whole, the Ninth Circuit said.

Despite upholding other portions of the fee award, the Ninth Circuit ordered the lower court to revisit the issue using the new legal standard, albeit begrudgingly.

“Any fee dispute is tedious, and this one is no exception.  Though we are reluctant to require the district court to revisit its findings in this already protracted satellite litigation, we see no other alternative,” U.S. District Judge Royce C. Lamberth, a D.C. federal judge sitting by designation on the Ninth Circuit, wrote in an opinion for the court.

McManis Faulkner took Rahinah Ibrahim's case in 2005 when the Stanford-educated mother of four was barred from travel after erroneously being included on the no-fly list.  The attorneys have argued that their win for Ibrahim should be encouraged by courts and that the district court erred in awarding only around $420,000 in fees and $35,000 in costs when the attorneys had asked for $3.8 million and more than $300,000, respectively.

Ibrahim discovered that her name was on the no-fly list when she attempted to travel from California to Malaysia in 2005 and was arrested at San Francisco International Airport.  She was told two hours later that her name had been removed from the list and she was allowed to fly home.  But when she tried to return to California two months later, she discovered her visa had been revoked.

She argued in her 2006 lawsuit against the Department of Homeland Security, the Federal Aviation Administration, San Francisco airport and others that her constitutional rights — including those protecting her from unlawful searches — were violated when she was detained and questioned.  Officers searched under her hijab in front of other passengers in the security line, she said in her complaint.

In April 2014, U.S. District Court Judge William H. Alsup found that Ibrahim's due process rights were violated when she was placed on the list and labeled a terrorist without being notified, and ordered the government to remove her.  He added that the process of watch-listing suspected terrorists must remain secret, and that making the process more transparent would “aid terrorists in their plans to bomb and kill Americans.”

Ibrahim's name was accidentally placed on the watch list after FBI special agent Michael Kelley “misunderstood the directions on the form and erroneously nominated Dr. Ibrahim to the TSA’s no-fly list," according to the judge's order.

Judge Alsup entered final judgment in the suit in October, calling the fees and costs sought by the firm “grossly excessive” and adopting a special master's report that trimmed the amounts drastically.  The judge also ordered Ibrahim's counsel to pay the entirety of the special master's costs of around $30,000 because of their failure to meet and confer with the government before filing the fee motion, their “obstinate refusal” to revise filings after the judge ordered they were only entitled to part of the fees they sought and for disregarding page limits in the fee dispute.

Earlier this month, the attorneys said the court had wrongly cut out parts of the case for fee purposes by finding the government had held “substantially justified” positions in those parts of the trial.  The attorneys said their fight to establish standing and have Ibrahim's visa reinstated so she could attend the trial, and litigation over the government's assertion of privilege regarding discovery were crucial to the case.

The Ninth Circuit agreed saying Supreme Court precedent is clear that “courts are to make but one substantial justification determination on the case as a whole.”

Still, the appeals court rejected the firm’s arguments that the lower court was wrong to exclude from the award time spent preparing First Amendment and equal protection claims on the grounds that they were unrelated to the procedural due process claim on which it prevailed in the suit.

Judge Lamberth noted that those claims were “mutually exclusive” of the due process claim.

"[I]f the government negligently placed Ibrahim on its watch lists because it failed to properly fill out a form, then it could not at the same time have intentionally placed Ibrahim on the list based on constitutionally protected attributes Ibrahim possesses, and vice versa,” he wrote.

The case is Rahinah Ibrahim v. Loretta E. Lynch et al., case number 14-16161, in the U.S. Court of Appeals for the Ninth Circuit.