A federal appeals court has excoriated U.S. government lawyers for their handling of decadelong litigation over a former Stanford graduate student’s complaint that she was unjustifiably included on the U.S. no-fly list for terrorists.
Malaysian citizen Rahinah Ibrahim won her lawsuit nearly five years ago when U.S. District Court Judge William Alsup ruled, following a trial, that her due process rights were violated by her placement on the list. An FBI agent testified at the trial that he misunderstood a form he filled out back in 2004, marking the wrong boxes and leading to the scholar being placed on the no-fly list.
The litigation has dragged on since over Ibrahim’s attorneys applied for about $3.6 million in legal fees and roughly $300,000 in expenses. The ruling from an 11-member en banc panel of the 9th Circuit Court of Appeals on Wednesday faulted Alsup for a series of errors that led to him slashing the fee request by nearly 90 percent.
Eight of the 11 9th Circuit judges on the case said there was strong evidence that Justice Department attorneys acted in “bad faith” by prolonging the litigation even after they knew that Ibrahim’s placement on the list was erroneous. Writing for the majority, Judge Kim Wardlaw said Alsup was too quick to set aside Ibrahim’s claims of bad faith on the government’s part and was far too stingy in awarding fees.
“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,” Wardlaw wrote.
The appeals court didn’t set a specific award but said the lawyers were entitled to “the vast majority of fees they requested.” Wardlaw added that the significant bill was attributable in large part to the government’s approach.
“From the suit’s inception, the government agencies’ actions, including their on-again, off- again 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,” wrote Wardlaw.
Ibrahim argued that her inclusion on the no-fly list violated not only her due process rights, but her First Amendment rights as well as her constitutional right to equal protection. Alsup cut her lawyers’ fees for time spent on those issues, since the court never resolved them after ruling for her on due process grounds.
All 11 judges on the en banc 9th Circuit court appeared to agree that reduction was an error, but three of those judges said their colleagues went too far in overturning Alsup’s finding that there was no bad faith on the part of government lawyers.
“The majority … gets carried away and arrogates to itself the determination in the first instance that the government’s position was not reasonable,” Judge Consuelo Callahan wrote.
Ibrahim, an engineering student, sued after she was denied boarding a flight at San Francisco airport and briefly detained there in 2005 as she was heading to Hawaii. Her placement on the list came shortly after she was interviewed by San Jose-based FBI Agent Kevin Kelley, who was interviewing Muslims as part of a mosque outreach program. Kelley testified that he intended to place Ibrahim on a “selectee“ list that leads travelers to receive additional scrutiny but is not a flat-out bar on air travel.
Alsup dismissed the suit twice and was reversed each time by the appeals court, leading to the 2013 trial.
A Justice Department spokeswoman declined to comment Wednesday on the court’s harsh criticism of the agency’s lawyers.
A lawyer for Ibrahim, James McManis, hailed the decision for detailing the lengths to which the government went to defeat the case.
“It was pretty ugly,” McManis said. “We had some really good lawyers working very hard on this case. I am personally grateful that the 9th Circuit recognized that work and said it should be properly compensated. … Some other firms wouldn’t touch this. I’m really thrilled that a little law firm like ours took on the U.S. government in a case like this and won.”