Appeals court rebukes federal government in ‘no-fly’ case, ruling it owes millions in legal fees
A federal appeals court decided Wednesday that the U.S. government must pay millions of dollars to lawyers for a Muslim woman who was mistakenly classified as a potential terrorist and placed on a “no-fly” list.
The U.S. 9th Circuit Court of Appeals, in an 8-3 ruling, found that federal lawyers engaged in “scorched earth litigation” for nearly a decade against the former Stanford University graduate student, even though they knew she posed no threat.
“Once the government discovers that its litigation position is baseless, it may not continue to defend it,” Judge Kim McLane Wardlaw, a Clinton appointee, wrote for the majority.
The case was brought by Rahinah Ibrahim, who was detained at San Francisco International Airport in 2005 when she attempted to leave the country for a Stanford conference.
Although she eventually was allowed to depart, she was denied reentry. She challenged the government’s denial in a lawsuit.
“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,” Wardlaw wrote.
Ibrahim ended up on the no-fly list in 2004 because an FBI agent misread a form, the court said.
Ibrahim’s case was the first to test the no-fly list and provided a legal road map for others to challenge mistaken placements on government watchlists.
The government finally admitted that Ibrahim had been placed on the list by mistake two days before trial — and eight years after the suit was filed.
During those years, the government “vigorously contested” Ibrahim’s attempts to discover information about her placement on the list and lodged more than 200 objections during depositions of witnesses, the 9th Circuit said.
Although the government knew as early as 2005 of the mistake, its lawyers “essentially doubled-down over the course of the litigation with a no-holds-barred” defense, the court said.
After Ibrahim won her case, a district judge awarded her $419,987.36 in legal fees and $34,768.71 in expenses. She appealed, arguing that the amount was too low, and Wednesday’s decision overturned that award.
The appeals court reversed a finding that the government had not acted in bad faith. A bad-faith finding allows for legal fees to be recovered at market rates instead of at $125 an hour.
The 9th Circuit called Ibrahim’s legal efforts “pathbreaking” and “extraordinary.”
“Dr. Ibrahim was the first person ever to force the government to admit a terrorist watchlisting mistake,” the court said.
As a result of her efforts, ”those misplaced on the no-fly list can contest that placement, and, if misplaced, regain their right to flight,” the court said.
Lawyers representing Ibrahim without charge incurred more than $3.6 million in expenses, and the “vast majority” of that amount should be reimbursed, the 9th Circuit said.
Judge Consuelo M. Callahan, an appointee of former President George W. Bush, dissented, joined by Judges N. Randy Smith, also appointed by Bush, and Jacqueline H. Nguyen, an Obama appointee.
They disagreed with the majority’s conclusion that the government’s position in the case was unjustified.
They also disagreed with the majority’s decision to overturn the finding that the government had not acted in bad faith.
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