This article originally appeared in the Daily Journal on January 25, 2019.

An en banc panel of the 9th Circuit recently issued a decision in Ibrahim v. DHS, 2019 DJDAR 4 (Jan. 3 2019), the latest installment in the long-running legal saga of the Stanford doctoral student who was mistakenly placed on the TSA’s “No Fly” list. The opinion is notable for a number of reasons, including its insight into the shadowy world of homeland security and its stern rebuke of the government’s conduct. Indeed, much of the discussion in the wake of the decision has focused on the government’s possible bad faith in aggressively litigating the case despite knowing all along that Dr. Ibrahim’s placement on the No Fly list was a mistake. But the opinion also provides a useful, albeit less dramatic, clarification of the law governing fee recovery in cases where a plaintiff prevails on only some of her claims.

In early January 2005, Dr. Rahinah Ibrahim — a Malaysian citizen with a student visa, who was pursuing a PhD in construction engineering and management at Stanford University — tried to board a flight from San Francisco to Hawaii. She was heading to Hawaii to attend a conference, where she would present her doctoral research. From Hawaii, she planned to travel to Kuala Lumpur. At the time, she had lived in the United States for about 13 years while pursuing her undergraduate and graduate education. 

Unbeknownst to Dr. Ibrahim, however, in late 2004, the government had placed her on the TSA’s No Fly list. Her presence on that list was an accident — the unfortunate result of an FBI agent’s misreading of the form he was filling out. He had intended to indicate that she should not be placed on the list but ended up doing exactly the opposite. 

When Dr. Ibrahim arrived at the airline counter, with her 14-year old daughter in tow, airline staff discovered her name on the No Fly list. Police arrested her, but she was later released and allowed to fly out the following day. She eventually made it to Kuala Lumpur, but when she tried to return to the United States, she was not permitted to board the flight. Without warning or explanation, the U.S. government had revoked her student visa. 

Over the ensuing years, the government repeatedly added and removed Dr. Ibrahim from various terrorist watchlists. Despite her best efforts to learn her watchlist status, remove herself from all lists, and obtain a new visa, she was unable to do so. 

Dr. Ibrahim filed this lawsuit, ultimately asserting procedural due process, substantive due process, equal protection, First Amendment, and APA claims. After an arduous discovery and motions process — and years of litigation, during which she was never allowed to return to the U.S. — Dr. Ibrahim prevailed on her procedural due process claim. The district court declined to reach her other claims because “those arguments, even if successful, would not lead to any greater relief than already ordered.”  

Throughout the litigation, a civil rights firm represented Dr. Ibrahim without pay but with the understanding that, if it prevailed, it could recover reasonable attorney’s fees under the Equal Access to Justice Act. Upon securing a victory for Dr. Ibrahim, the firm filed a motion for award of attorney’s fees and expenses. 

The district court allowed the firm to recover fees, but awarded it only a small fraction of the total fees the firm had requested. In doing so, the district court reasoned that the government had not acted in bad faith and that the firm should not be permitted to recover fees incurred litigating some of the claims that the district court had declined to reach. A three-judge 9th Circuit panel affirmed in part and reversed in part, but that opinion was withdrawn after the 9th Circuit granted en banc review. 

The en banc opinion provides useful clarification of the scope of recovery when a federal statute authorizes the award of fees to a prevailing party, but that party has not prevailed on each and every claim. The general rule is set out by the U.S. Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983). That decision establishes a two-part inquiry: (1) whether the party failed to prevail on claims that were unrelated to the claims on which he succeeded; and (2) whether the party’s overall success was such that it would be reasonable to award fees for the full amount of time spent on both successful claims and related but unsuccessful claims. In applying that standard to the claims at issue here, the en banc panel made three particularly useful observations. 

First, when a party obtains full relief on one claim, rendering it unnecessary for the district court to reach the remaining claims, this does not mean that the party has “lost” on the unreached claims. Any contrary holding would turn the rationale of Hensley “on its head.” In keeping with decisions from the 6th, 7th, and 8th Circuits, the 9th Circuit unequivocally established that unreached claims are not necessarily unsuccessful ones. 

Second, the en banc opinion refines and clarifies the nature of the inquiry into whether two claims are “related” to one another. The three-judge panel had applied a “mutual exclusivity” test, holding that two claims were unrelated if it would be impossible for the party to prevail on both of them. The en banc panel rejected that approach, focusing instead on whether the claims “arose out of the same ‘course of conduct.’” Alternative claims that arise out of the same course of conduct are related even if, as a legal matter, it would be impossible to prevail on both theories. 

Third and finally, the court clarified that the determination of whether a party achieved “limited success” or an “excellent result” does not depend on the proportion of claims on which the party prevailed. To the contrary, although Dr. Ibrahim explicitly prevailed only on her procedural due process claim, her success in the litigation overall was “not just ‘excellent’ but extraordinary.” That was so because of the “pathbreaking nature of her lawsuit,” the widespread implications of her victory, and the disparate resources available to the parties’ attorneys. The court therefore concluded that Dr. Ibrahim’s attorneys were entitled to reasonable fees consistent with that extraordinary outcome. 

The decision thus provides useful clarification of the Supreme Court’s 1983 decision in Hensley, and a needed course-correction that brings the 9th Circuit back in line with its sister circuits. It also furthers the purposes of the civil rights attorney fee provisions by helping to create “a level playing field in cases in which there is an imbalance of power and resources.” Hopefully, the decision will encourage attorneys to take risks on representing worthy causes and making trailblazing legal arguments — a result that would benefit not just litigants but the public as a whole. 

Susan Yorke is of counsel with the California Appellate Law Group LLP,* an appellate boutique with offices in Los Angeles San Francisco. She served as a law clerk on the 9th Circuit for two judges and in the Appellate Division of the Oregon Department of Justice. Find out more about Susan and the California Appellate Law Group LLP at Appellate Zealots is a monthly column on recent appellate decisions written by the attorneys of the California Appellate Law Group LLP.

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

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