$419,987.36 Fee Award/$34,768.71 Costs Award Gets Remanded For Another Look.
In Ibrahim v. U.S. Dept. of Homeland Security, Nos. 14-16161/14-17272 (9th Cir. Aug. 30, 2016) (published), a plaintiff won a week-long bench trial in which the district judge determined that he was improperly placed on a terrorist/No-Fly List. Plaintiff then moved to recover $3.36 million in fees and $253,800 in costs under the Equal Access to Justice Act (EAJA) and bad-faith test of Hensley v. Eckerhart, 461 U.S. 424 (1983). The district judge determined that the governmental position was substantially justified under EAJA using a somewhat position-by-position test and was not in bad faith under Hensley, eventually awarding plaintiff $419,987.36 in fees and $34,768.71 in costs.
The Ninth Circuit reversed and remanded, with the same panel retaining “jurisdiction” to revisit any remand activities.
The main error was the district judge’s failure to determine if the government’s position was substantially justified as a whole rather than based on a parsed position-by-position, activity-by-activity perspective. That really drove the reversal and remand in large part, including the reductions based on this perspective.
However, the federal appeals court did find the district court’s finding of lack of “bad faith” was not erroneous, meaning the district judge could look at discrete conduct and segregate it as far as determining whether bad faith was exhibited by the government.
Also, the district court did not error by reducing the fee request for unsuccessful work on claims which were mutually exclusive from the successful claims.
Finally, a little more detail was warranted as far as the reasons for reductions, based on the Ninth Circuit’s Moreno decision—which held in the civil rights area that fee “haircuts” over 10% have to be explained with specificity.