FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DR. RAHINAH IBRAHIM, an Nos. 14-16161 individual, 14-17272 Plaintiff-Appellant, D.C. No. v. 3:06-cv-545- WHA U.S. DEPARTMENT OF HOMELAND SECURITY; TERRORIST SCREENING CENTER; FEDERAL BUREAU OF OPINION INVESTIGATION; CHRISTOPHER A. WRAY, * in his official capacity as Director of the Federal Bureau of Investigation; KIRSTJEN NIELSEN, in her official capacity as Secretary of the Department of Homeland Security; MATTHEW G. WHITAKER, in his official capacity as Acting Attorney General; CHARLES H. KABLE IV, in his official capacity as Director of the Terrorist Screening Center; JAY S. TABB, JR., in his official capacity as Executive Assistant Director of the FBI’s National Security Branch; NATIONAL COUNTERTERRORISM CENTER; * Current cabinet members and other federal officials have been substituted for their predecessors pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure. 2 IBRAHIM V. DHS RUSSELL “RUSS” TRAVERS, in his official capacity as Director of the National Counterterrorism Center; DEPARTMENT OF STATE; MICHAEL R. POMPEO, in his official capacity as Secretary of State; UNITED STATES OF AMERICA, Defendants-Appellees. Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding Argued and Submitted En Banc March 20, 2018 San Francisco, California Filed January 2, 2019 Before: Sidney R. Thomas, Chief Judge, and M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Marsha S. Berzon, Consuelo M. Callahan, Milan D. Smith, Jr., N. Randy Smith, Morgan Christen, Jacqueline H. Nguyen, and Paul J. Watford, Circuit Judges. Opinion by Judge Wardlaw; Partial Concurrence and Partial Dissent by Judge Callahan IBRAHIM V. DHS 3 SUMMARY ** Equal Access to Justice Act / Attorneys’ Fees The en banc court reversed the district court, vacated the award of attorneys’ fees under the Equal Access to Justice Act (“EAJA”), and remanded with instructions to recalculate the fees for the civil rights law firm that represented Dr. Rahinah Ibrahim in her successful challenge to her inclusion on the Transportation Security Administration’s “No Fly” list. The en banc court held that when a district court awards complete relief on one claim, rendering it unnecessary to reach alternative claims, the alternative claims cannot be deemed unsuccessful for the purpose of calculating a fee award. The en banc court rejected the post hoc “mutual exclusivity” approach to determining whether “unsuccessful” claims were related to successful claims and reaffirmed that Hensley v. Eckerhart, 461 U.S. 424 (1983), sets forth the correct standard of “relatedness” for claims under EAJA. The en banc court reaffirmed that in evaluating whether the government’s position is substantially justified, the court looks at whether the government’s and the underlying agency’s positions were justified as a whole and not at each stage of the litigation. Applying these standards, the en banc court held that the various stages at issue here were all part of one litigation in federal court where the case was never returned to an agency for further proceedings, and, therefore, Corbin v. Apfel, ** This summary constitutes no part of ...
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