FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DR. RAHINAH IBRAHIM, an 

individual,

Plaintiff-Appellant,

v.

U.S. DEPARTMENT OF HOMELAND 

SECURITY; TERRORIST SCREENING 

CENTER; FEDERAL BUREAU OF 

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;

Nos. 14-16161

14-17272

D.C. No.

3:06-cv-545-

WHA

OPINION

 * 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 the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
4 IBRAHIM V. DHS

149 F.3d 1051 (9th Cir. 1998) (holding that in exceedingly 

complex cases, a court may appropriately determine whether 

the government was substantially justified at each stage of 

the litigation and make a fee award apportioned to those 

separate determinations), did not apply. The en banc court 

held that the district court erred in its piecemeal approach to 

substantial justification, and concluded that neither the 

agency’s conduct nor the government’s litigation position 

was substantially justified.

The en banc court held that the district court erred in 

determining that Dr. Ibrahim was entitled to reasonable fees 

and expenses with respect to only her procedural due process 

claim and her related substantive due process and 

Administrative Procedure Act claims, and in disallowing 

counsel’s reasonable fees and expenses on the unreached, 

and “unrelated,” First Amendment and equal protection 

claims. The en banc court held that the district court clearly 

erred in holding that Dr. Ibrahim’s unreached claims were 

unsuccessful. The en banc court held that all of 

Dr. Ibrahim’s claim arose from a “common course of 

conduct” and were therefore related under Hensley. The en 

banc court further held that the district court erred in finding 

that Dr. Ibrahim had only “limited” success, and concluded 

that Dr. Ibrahim satisfied Hensley’s second prong that the 

plaintiff achieve “a level of success that makes the hours 

reasonably expended a satisfactory basis for making a fee 

award.” Hensley, 461 U.S. at 434. The en banc court found 

that Dr. Ibrahim achieved excellent results and was entitled 

to reasonable fees consistent with that outcome.

Although generally attorneys’ fees are capped under 

EAJA at $125 per hour, where the government acts in bad 

faith, a court may assess fees and expenses to the extent a 

party would be liable under the common law. The en banc 
IBRAHIM V. DHS 5

court concluded that the district court’s ruling that the 

government did not act in bad faith was in error because it 

was incomplete where the district court did not consider the 

“totality” of the government’s conduct, including conduct 

prelitigation and during trial.

The en banc court remanded to allow the district court to 

make a bad faith determination under the correct legal 

standard in the first instance, and to re-determine the fee 

award.

Judge Callahan, joined by Judges N.R. Smith and 

Nguyen, concurred in part and dissented in part. Judge 

Callahan agreed with the majority that Dr. Ibrahim was the 

prevailing party, and that the test for substantial justification 

is an inclusive one; and that Dr. Ibrahim’s equal protection 

and First Amendment claims were sufficiently related to her 

other claims such that the district court’s failure to reach 

those issues did not justify the district court’s curtailment of 

attorneys’ fees. Judge Callahan would hold that the majority 

exceeded its role as an appellate court by determining in the 

first instance that the government’s position was not 

substantially justified; and dissented from the majority’s 

setting aside of the district court’s finding that the defendants 

did not proceed in bad faith. Judge Callahan would affirm

the district court’s limitation of Dr. Ibrahim’s attorneys’ fees 

to the statutory rate set by EAJA.
6 IBRAHIM V. DHS

COUNSEL

Marwa Elzankaly (argued), Jennifer Murakami, Ruby Kazi, 

Christine Peek, Elizabeth Pipkin, and James McManis, 

McManis Faulkner, San Jose, California, for PlaintiffAppellant.

Joshua Waldman (argued) and Sharon Swingle, Appellate 

Staff, Civil Division, United States Department of Justice, 

Washington, D.C., for Defendants-Appellees.

Chet A. Kronenberg and JoAnne S. Jennings, Simpson 

Thacher & Bartlett LLP, Los Angeles, California, for Amici 

Curiae American Civil Liberties Union of California, Asian 

Americans Advancing Justice-Asian Law Caucus, Asian 

Americans Advancing Justice-Los Angeles, Center for 

Constitutional Rights, Electronic Frontier Foundation, and 

National Immigration Law Center.
IBRAHIM V. DHS 7

OPINION

WARDLAW, Circuit Judge:

This appeal arises out of Dr. Rahinah Ibrahim’s 2005 

detention at the San Francisco International Airport (SFO) 

while en route to Malaysia with a stopover in Hawaii for a 

Stanford University conference. U.S. authorities detained 

Dr. Ibrahim because her name was on the Transportation 

Security Administration’s (TSA) “No Fly” list (the No Fly 

list). After almost a decade of vigorous and fiercely 

contested litigation against our state and federal 

governments and their officials, including two appeals to our 

court and a weeklong trial, Dr. Ibrahim won a complete 

victory. In 2014, the federal government at last conceded 

that she poses no threat to our safety or national security, has 

never posed a threat to national security, and should never 

have been placed on the No Fly list. Through Dr. Ibrahim’s 

persistent discovery efforts, which were met with stubborn 

opposition at every turn, she learned that she had been 

nominated to the No Fly list and the Interagency Border 

Inspection System (IBIS), which are stored within the

national Terrorist Screening Database (TSDB)—the federal 

government’s centralized watchlist of known and suspected 

terrorists—and which serve as a basis for selection for other 

counterterrorism sub-lists. From there, a Federal Bureau of 

Investigation (FBI) special agent so misread a nomination 

form that he accidentally nominated Dr. Ibrahim to the No 

Fly list, intending to do the opposite, as the No Fly list is 

supposed to be comprised of individuals who pose a threat 

to civil aviation.

But Dr. Ibrahim did not accomplish this litigation victory 

on her own. Indeed, since she was finally allowed to travel 

to Malaysia in 2005, the United States government has never 

allowed her to return to the United States, not even to attend 
8 IBRAHIM V. DHS

the trial that cleared her name. Throughout this hard-fought 

litigation, the civil rights law firm McManis Faulkner has 

represented her interests without pay, but with the 

understanding that if it prevailed on her behalf, it could 

recover reasonable attorneys’ fees and expenses, in addition 

to costs, pursuant to the Equal Access to Justice Act (EAJA), 

28 U.S.C. § 2412.

The firm filed a motion for an award of attorneys’ fees 

and expenses, supported by documentary evidence and 

declarations, which the government opposed. The motion 

was met with the “compliments” of the district court and 

drastic reductions in the claimed fees, by almost ninety 

percent. In reducing the claimed legal fees, the district court 

misapplied Commissioner, I.N.S. v. Jean, 496 U.S. 154 

(1990), by taking a piecemeal approach to determining 

whether the government’s position was “substantially 

justified,” and so disallowing fees for particular stages of 

proceedings rather than examining the record as a whole and 

making a single finding. The district court further erred by 

treating alternative claims or theories for the same relief Dr. 

Ibrahim achieved—which the court, therefore, did not 

reach—as unsuccessful, and reducing fees for work pursuing 

those claims, contrary to Hensley v. Eckerhart, 461 U.S. 424 

(1983). These errors were compounded by the nowwithdrawn three-judge panel decision, which misapplied the 

Hensley standard for determining “relatedness,” i.e., 

whether the claims arose from a “common course of 

conduct,” to wrongly conclude that because the claims in the 

alternative were “mutually exclusive,” they were not related. 

In point of fact, all of the legal theories pursued on behalf of 

Dr. Ibrahim challenged the same and only government 

action at the heart of this lawsuit: the government’s 

placement of her name on the No Fly list without any basis 

for doing so. Finally, our prior precedent, which we now 
IBRAHIM V. DHS 9

reaffirm, requires that when a district court analyzes whether 

the government acted in bad faith, it must consider the 

totality of the circumstances, including both the underlying 

agency action and the litigation in defense of that action.

We reheard this appeal en banc to clarify the standards 

applicable to awards of attorneys’ fees under the EAJA. We 

now reverse, vacate the award of attorneys’ fees, and remand 

with instructions to recalculate fees consistent with this 

opinion.1

I.

A. Dr. Ibrahim

Dr. Ibrahim is a Muslim woman, scholar, wife, and 

mother of four children. She lived in the United States for 

thirteen years pursuing undergraduate and post-graduate 

studies. Here’s what happened to Dr. Ibrahim, as the events 

that ultimately excluded her from this country unraveled:

In early January 2005, Dr. Ibrahim planned to fly from 

San Francisco to Hawaii and then to Los Angeles and on to 

Kuala Lumpur. She intended to attend a conference in

Hawaii sponsored by Stanford University from January 3 to 

January 6, at which she would present the results of her 

doctoral research. She was then working toward a Ph.D. in 

construction engineering and management at Stanford 

University under an F-1 student visa. On January 2, 2005,

Dr. Ibrahim arrived at SFO with her daughter, Rafeah, then 

fourteen. At the time, Dr. Ibrahim was still recovering from

 1 For ease of reading, attached as Appendix A is a glossary of the 

numerous acronyms referenced throughout this opinion.
10 IBRAHIM V. DHS

a hysterectomy performed three months earlier and required 

wheelchair assistance.

When Dr. Ibrahim arrived at the United Airlines counter, 

the airline staff discovered her name on the No Fly list and 

called the police. Dr. Ibrahim was handcuffed and arrested. 

She was escorted to a police car (while handcuffed) and 

transported to a holding cell by male police officers, where 

she was searched for weapons and held for approximately 

two hours. Paramedics were called to administer medication 

related to her surgery. No one explained to Dr. Ibrahim the 

reasons for her arrest and detention.

Eventually, she was released and an aviation security 

inspector with the Department of Homeland Security (DHS) 

informed Dr. Ibrahim that her name had been removed from 

the No Fly list. The police were satisfied that there were 

insufficient grounds for making a criminal complaint against 

her. Dr. Ibrahim was told that she could fly to Hawaii the 

next day.

The next day she returned to SFO where an unspecified 

person told her that she was again—or still—on the No Fly 

list. She was nonetheless allowed to fly, but was issued an 

unusual red boarding pass with the letters “SSSS,” meaning 

Secondary Security Screening Selection, printed on it. Dr. 

Ibrahim flew to Hawaii and presented her doctoral findings 

at the Stanford conference. From there, she flew to Los 

Angeles and then on to Kuala Lumpur.

Two months later, on March 10, 2005, Dr. Ibrahim was 

scheduled to return to Stanford University to complete her 

work on her Ph.D. and to meet with an individual who was 

one of her Stanford dissertation advisors and also her friend,

Professor Boyd Paulson, who was very ill. But when she 

arrived at the Kuala Lumpur International Airport, she was 
IBRAHIM V. DHS 11

not permitted to board the flight to the United States. She 

was told by one ticketing agent that she would have to wait 

for clearance from the U.S. Embassy, and by another that a 

note by her name indicated the police should be called to 

arrest her. Dr. Ibrahim has not been permitted to return to 

the United States to this day.

On March 24, 2005, Dr. Ibrahim submitted a Passenger 

Identity Verification Form (PIVF) to TSA. Before 2007, 

individuals who claimed they were denied or delayed 

boarding a plane in or for, or entry to, the United States, or 

claimed they were repeatedly subjected to additional 

screening or inspection, could submit a PIVF to TSA. A 

PIVF prompted various agencies to review whether an 

individual was properly placed in the TSDB or in related 

watchlist databases.2

Next, on April 14, 2005, the U.S. Embassy in Kuala 

Lumpur wrote to inform Dr. Ibrahim that the Department of 

State had revoked her F-1 student visa on January 31, 2005, 

which seemed to explain why she had not been allowed to 

fly in March, but gave her no further information regarding 

her status. The April 14 letter cited Dr. Ibrahim’s possible 

ineligibility “under Section 212(a)(3)(B) of the Immigration 

and Nationality Act [(INA)],” codified at 8 U.S.C 

§ 1182(a)(3)(B), to explain the revocation. That section 

prohibits entry into the U.S. by any person who engaged in 

terrorist activity, was reasonably believed to be engaged in 

or likely to be engaged in terrorist activity, or who has 

incited terrorist activity, among other things. 8 U.S.C. 

 2 This avenue of redress was replaced in 2007 by the Travel Redress 

Inquiry Program (TRIP), see 49 U.S.C. § 44926(a), which requires a 

“timely and fair” process for persons wrongly delayed or prohibited from 

boarding a commercial aircraft.
12 IBRAHIM V. DHS

§ 1182(a)(3)(B). However, the letter also told her that the 

revocation did “not necessarily indicate that [she would be] 

ineligible to receive a U.S. visa in [the] future.” Not having 

heard back from TSA, Dr. Ibrahim retained McManis 

Faulkner. And on January 27, 2006, she filed the underlying 

action to challenge her placement on the No Fly list, as well 

as the federal and state governments’ administration of the 

list and their treatment of her with respect to it.

In a letter dated March 1, 2006, Dr. Ibrahim received a 

response to her PIVF. That letter stated that TSA had 

“conducted a review of any applicable records in 

consultation with other federal agencies, as appropriate,” 

and continued, “[w]here it has been determined that a 

correction to records is warranted, these records have been 

modified to address any delay or denial of boarding that you 

may have experienced as a result of the watchlist screening 

process.” The letter did not indicate Dr. Ibrahim’s status 

with respect to the No Fly list or any other federal watchlist.

In 2009, Dr. Ibrahim applied for a visa to attend 

proceedings in this action. The U.S. Embassy in Kuala 

Lumpur interviewed her on September 29, 2009. On 

December 14, 2009, a consular officer of the U.S. 

Department of State sent a letter to Dr. Ibrahim notifying her 

of her visa application’s denial. The consular officer wrote 

the word “(Terrorist)” next to the checked box for INA 

§ 212(a)(3)(B) on an accompanying form to explain why Dr. 

Ibrahim was deemed inadmissible.

In September 2013, Dr. Ibrahim submitted a visa 

application so that she could attend the trial in her case. She 

went to a consular officer interview in October 2013. At the 

interview, the consular officer asked her to provide 

supplemental information via e-mail, which Dr. Ibrahim 

duly provided. Trial in this action began on December 2 and 
IBRAHIM V. DHS 13

ended on December 6. While she did not receive a response 

to her visa application before trial, at trial, government 

counsel stated that the visa had been denied. Dr. Ibrahim’s 

counsel said that they had not been aware of the denial and 

that Dr. Ibrahim had not been notified.

B. United States Government

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.3

Here it is helpful to understand, as much as we can on 

this record, how the U.S. “government maintains and 

operates a web of interlocking watchlists, all now centered 

on the [TSDB],” as described in the district court’s post-trial 

order.4 The FBI, DHS, the Department of State, and other 

agencies administer an organization called the Terrorist 

Screening Center (TSC), which manages the TSDB. Both 

the TSC and TSDB were created in response to the terrorist 

attacks on September 11, 2001, in order to centralize 

information about known and suspected terrorists. That 

information is then exported as appropriate to various 

“customer databases,” i.e., government watchlists, operated 

by other agencies and government entities. In this way, “the 

 3 To this date, we do not know how Dr. Ibrahim was initially flagged 

for potential placement in the TSDB, managed by the Terrorist Screening 

Center (TSC), of which the No Fly list is a subset. There has never been 

a determination, nor can we determine, whether this placement was 

motivated by “race, religion, or ethnicity.”

4 None of the following information was deemed classified or 

otherwise privileged before or during trial.
14 IBRAHIM V. DHS

dots could be connected.” While the TSDB does not contain 

classified information, the government stores classified 

“derogatory” information in a closely allied and separate 

database called the Terrorist Identities Datamart 

Environment (TIDE), which is operated by the National 

Counterterrorism Center (NCTC) branch of the Office of the 

Director of National Intelligence. These terrorist watchlists, 

and others, provide information to the United States 

intelligence community, a coalition of seventeen agencies 

and organizations within the executive branch, and also 

provide information to certain foreign governments.

Today, individuals are generally nominated to the TSDB 

using a “reasonable suspicion standard,” meaning 

“articulable facts which, taken together with rational 

inferences, reasonably warrant the determination that an 

individual is known or suspected to be or has been engaged 

in conduct constituting, in preparation for, in aid of, or 

related to terrorism and terrorist activities.” This standard 

was created by executive branch policy and practice and was 

not promulgated by Congress or the judicial branch. 

However, from 2004 to 2007, the executive branch and its 

agencies employed no uniform standard for TSDB 

nominations, allowing each agency to use its own 

nominating procedures for inclusion in the TSDB based on 

each agency’s interpretation of homeland security 

presidential directives and the memorandum of opinion that 

established the TSC. These directives provided little 

instruction. For example, one such directive was Homeland 

Security Presidential Directive 6 (HSPD-6), which stated, 

“[t]his directive shall be implemented in a manner consistent 

with the provisions of the Constitution and applicable laws, 

including those protecting the rights of all Americans.”
IBRAHIM V. DHS 15

As the centralized database, the TSDB is the repository 

for all watchlist nominations. Various government agents 

nominate individuals by filling out a physical form, which is 

later computerized and used by the TSDB to indicate on 

which watchlist each nominee should be included or 

excluded. There are several watchlists affected by the 

TSDB, namely5:

• the No Fly list (TSA);

• the Selectee list (TSA);

• Known and Suspected Terrorist File (KSTF, 

previously known as the Violent Gang and Terrorist 

Organizations File);

• Consular Lookout and Support System (CLASS, 

including CLASS-Visa, a Department of State 

database used for screening of visa applicants, and 

CLASS-Passport, a database that applies only to 

United States citizens who might be watchlisted) 

(Department of State);

• TECS (not an acronym, but the successor to the 

Treasury Enforcement Communications System) 

(DHS);

• Interagency Border Inspection System (IBIS) 

(DHS);

• Tipoff United States-Canada (TUSCAN) (used to 

export information from the United States to 

Canada); and

• Tipoff Australia Counterterrorism Information 

Control System (TACTICS) (used to export 

information from the United States to Australia).

 5 This is information derived solely from the record before us, so we 

do not represent that this is an exclusive list or that there have not been 

subsequent changes to the lists.
16 IBRAHIM V. DHS

These TSDB designations are then exported to the 

customer/government watchlists, which are each operated 

by various government entities and used in various ways. 

For example, TSDB nominations are transmitted to the 

Department of State for inclusion in CLASS-Visa or 

CLASS-Passport. In ruling on visa applications, consular 

officers review the CLASS database for information that 

may inform the visa application and adjudication process.

In November 2004, shortly after Dr. Ibrahim’s husband 

Mustafa Kamal Mohammed Zaini visited her from Malaysia 

to help her after her surgery, FBI Special Agent Kevin 

Michael Kelley (Agent Kelley), located in San Jose,

California, unintentionally nominated Dr. Ibrahim, who was 

then a graduate student at Stanford University, to various 

federal watchlists using the FBI’s National Crime 

Information Center (NCIC) Violent Gang and Terrorist 

Organizations (VGTO) File Gang Member Entry Form 

(VGTOF). VGTO was an office within NCIC. Agent 

Kelley misunderstood the directions on the form and 

erroneously nominated Dr. Ibrahim to the TSA’s No Fly list 

and DHS’s IBIS. He did not intend to do so.

Agent Kelley testified at trial that he intended to 

nominate Dr. Ibrahim to the CLASS, the TSA Selectee list, 

TUSCAN (information exported to Canada), and TACTICS 

(information exported to Australia) lists. He checked the 

wrong boxes, filling out the form exactly contrary to the

form’s instructions. The form expressly indicated that he 

was to check the boxes for the databases into which the 

subject should NOT be placed. Here is a blank copy of the 

form:
IBRAHIM V. DHS 17

In other words, Agent Kelley was instructed to check the 

boxes for the watchlists for which Dr. Ibrahim was NOT to 

be nominated. Here is the form as Agent Kelley completed 

it:

Agent Kelley, by failing to check the boxes for the No Fly 

list and IBIS, placed Dr. Ibrahim on those watchlists (and by 

checking the boxes for CLASS, the TSA Selectee list, 

TUSCAN, and TACTICS, Agent Kelley did not place her on 

those lists).

Agent Kelley’s squad also was conducting a mosque

outreach program. One purpose of the program was to 
18 IBRAHIM V. DHS

provide a point of contact between law enforcement and

mosques and Islamic associations. The outreach program 

included Muslim and Sikh communities and organizations in 

the San Francisco Bay Area. In December 2004, Agent 

Kelley and his colleague interviewed Dr. Ibrahim while she 

was still attending Stanford University.6 He asked, among 

other things, about her plans to attend a conference in 

Hawaii, her dissertation work, her plans after graduation, her 

involvement in the Muslim community, her husband, her

travel plans, and the organization Jemaah Islamiyah, a 

Department of State-designated terrorist organization that 

Dr. Ibrahim had heard of only on the news. She was not a 

member.7 The Freedom of Information Act-produced 

version of Agent Kelley’s interview notes with Dr. Ibrahim

were designated by the FBI as “315,” which denotes

“International Terrorism Investigations.”

On January 2, 2005, when Dr. Ibrahim was detained at 

SFO on her way to Hawaii, a DHS aviation security 

inspector told her that her name had been removed from the 

list.

 6 Again, we do not know on this record the motivation for singling 

out Dr. Ibrahim for the interview, but we note that the district court stated 

“it [was] plausible that Dr. Ibrahim was interviewed in the first place on 

account of her roots and religion.” The interview also came soon on the 

heels of her Muslim husband’s visit. However, the motivation question

was the basis for one of the claims the district court found it unnecessary 

to reach.

7 Dr. Ibrahim was a member of a non-terrorist organization with a 

similar-sounding name, Jemaah Islah Malaysia, a Malaysian 

professional organization composed primarily of individuals who 

studied in the United States or Europe. The district court declined to find 

that Agent Kelley confused Jemaah Islah Malaysia with Jemaah 

Islamiyah.
IBRAHIM V. DHS 19

Meanwhile, on January 3, 2005, in the visa office of the 

Department of State, one official was sitting on a stack of 

pending visa revocations that were based on the VGTO 

watchlist from which Agent Kelley had nominated Dr. 

Ibrahim to the No Fly list. That official e-mailed another 

visa official to report that although “[t]hese revocations 

contain virtually no derogatory information,” he was going 

to revoke them. The official wrote, because “there is no 

practical way to determine the basis of the investigation . . .

we will accept that the opening of an investigation itself is a 

prima facie indicator of potential ineligibility under 

[§ 212(a)(3)(B) of the INA, relating to terrorist activities].” 

One of the revocations in that stack was Dr. Ibrahim’s 

student visa.

Sure enough, on January 31, 2005, the Department of 

State revoked Dr. Ibrahim’s F-1 student visa pursuant to 

§ 212(a)(3)(B). In an e-mail conversation dated February 8, 

2005 between the chief of the consular section at the U.S.

Embassy in Kuala Lumpur and an official in the 

coordination division at the Department of State’s visa 

office, designated “VO/L/C,” the consular chief asked about 

a prudential visa revocation cable he had received 

concerning the events Dr. Ibrahim experienced in January

2005. The Department of State official replied,

I handle revocations in VO/L/C. The short 

version is that this person’s visa was revoked 

because there is law enforcement interest in 

her as a potential terrorist. This is sufficient 

to prudentially revoke a visa but doesn’t 

constitute a finding of ineligibility. The idea 

is to revoke first and resolve the issues later 

in the context of a new visa application . . . . 

My guess based on past experience is that 
20 IBRAHIM V. DHS

she’s probably issuable. However, there’s no 

way to be sure without putting her through

the interagency process.

After Dr. Ibrahim’s visa was revoked, the Department of 

State entered a record into CLASS that notified any consular 

official adjudicating a future visa application on her behalf 

that she may be inadmissible under § 212(a)(3)(B). In 

December 2005, Dr. Ibrahim was removed from the TSA’s 

Selectee list. Around this time, however, she was added to 

TACTICS (exports to Australia) and TUSCAN (exports to 

Canada). The government has never explained this 

placement or the effect of Dr. Ibrahim’s placement on 

TACTICS or TUSCAN.8

Two weeks later, on January 27, 2006, Dr. Ibrahim filed 

the underlying action. On February 10, 2006, an 

unidentified government agent requested that Dr. Ibrahim be 

“Remove[d] From ALL Watchlisting Supported Systems 

(For terrorist subjects: due to closure of case AND no nexus 

to terrorism).” Answering the question “Is the individual 

qualified for placement on the no fly list?” the “No” box was 

checked. For the question, “If No, is the individual qualified 

for placement on the selectee list?” the “No” box was

checked.

On September 18, 2006, the government removed Dr.

Ibrahim from the TSDB because she did not meet the 

“reasonable suspicion standard” for placement on it, which 

 8 The record does not reflect how Canada and Australia use the 

information exported into the TUSCAN and TACTICS databases. The 

government declined to provide this information during discovery,

deeming it outside the scope of the Federal Rule of Civil 

Procedure 30(b)(6) subpoena.
IBRAHIM V. DHS 21

requires that the government believe “an individual is known 

or suspected to be or has been engaged in conduct 

constituting, in preparation for, in aid of, or related to 

terrorism and terrorist activities.” The record, however, 

does not indicate whether she was removed from all of the 

customer watchlists that subscribed to the TSDB.

On March 2, 2007, Dr. Ibrahim was placed back on the 

TSDB. The record does not explain why she was relisted 

on the TSDB or which customer watchlists were to be 

notified. Two months later, however, on May 30, 2007, Dr. 

Ibrahim was again removed from the TSDB. The record 

does not show the extent to which Dr. Ibrahim’s name was 

then removed from the other customer watchlists, nor the 

reason for the removal.

Dr. Ibrahim’s 2009 visa application to attend 

proceedings in this case was initially refused under § 221(g)

of the INA, 8 U.S.C. § 1201(g), because it was determined

that there was insufficient information to make a final 

adjudication in the matter. The consular officer requested a 

Security Advisory Opinion from the Department of State. 

The consular official was concerned that Dr. Ibrahim was 

potentially inadmissible under § 212(a)(3)(B) of the INA, 

which provides nine classes of aliens ineligible for visas or 

admission into the United States based on terrorist activities. 

The Security Advisory Opinion from the Department of 

State, initially unavailable to Dr. Ibrahim but later produced 

in discovery, stated:

Information on this applicant surfaced during 

the SAO review that would support a 

212(a)(3)(B) inadmissibility finding. Posts

should refuse the case accordingly. Since the 

Department reports all visa refusals under 

INA Section 212(a)(3)(B) to Congress, post 
22 IBRAHIM V. DHS

should notify [the Coordination Division 

within the Visa Office] when the visa refusal 

is affected [sic]. There has been no request 

for an INA section 212(d)(3)(A) waiver at 

this time.

Based on the Security Advisory Opinion’s finding, the 

consular officer denied her visa application, and wrote the

word “(Terrorist)” on the form to explain the inadmissibility 

determination to Dr. Ibrahim.

On October 20, 2009, Dr. Ibrahim was again nominated 

to the TSDB pursuant to a secret exception to the reasonable 

suspicion standard. The government claims that the nature 

of the exception and the reasons for the nomination are state 

secrets. In Dr. Ibrahim’s circumstance, the effect of the 

nomination was that Dr. Ibrahim’s information was exported 

from the TSDB database solely to the Department of State’s

CLASS database and DHS’s TECS database.

From October 2009 to the present, Dr. Ibrahim has been 

included on the TSDB, CLASS, and TECS watchlists. She 

has been off the No Fly and Selectee lists. She remains in 

the TSDB, even though she does not meet the “reasonable 

suspicion standard,” pursuant to a classified and secret 

exception to that standard.

Government counsel conceded at trial that Dr. Ibrahim

was not a threat to the national security of the United States

and that she never has been. She did not pose (and has not 

posed) a threat of committing an act of international or 

domestic terrorism with respect to an aircraft, a threat to 

airline passenger or civil aviation security, or a threat of 

domestic terrorism. Despite this assessment, Dr. Ibrahim 

has been unable to return to the United States to this day.
IBRAHIM V. DHS 23

II.

On January 27, 2006, Dr. Ibrahim filed suit against DHS, 

TSA, the TSC, the FBI, the Federal Aviation Administration 

(FAA), and individuals associated with these entities 

(collectively, the federal defendants); the City and County of 

San Francisco, the San Francisco Police Department, SFO, 

the County of San Mateo, and individuals associated with 

these entities (collectively, the city defendants); and United 

Airlines, UAL Corporation, and individuals associated with 

these entities (collectively, the private defendants). Dr. 

Ibrahim asserted § 1983 claims and state-law tort claims 

arising out of her detention at SFO, as well as several 

constitutional claims based on the inclusion of her name on 

government terrorist watchlists. On August 16, 2006, the 

district court dismissed her claims against the federal 

defendants under 49 U.S.C. § 46110(a), which vests 

exclusive original jurisdiction in the courts of appeals over 

suits challenging security orders issued by TSA. The order 

also dismissed Dr. Ibrahim’s claims against a TSA employee 

and the airline. Dr. Ibrahim appealed.

We affirmed in part, reversed in part, and remanded. We 

reversed the district court’s dismissal of the federal 

defendants, holding that § 46110(a) does not bar district 

court jurisdiction over Dr. Ibrahim’s challenges to her 

placement on the government terrorist watchlists, including 

the No Fly list, because the lists are managed by the TSC 

rather than TSA. Ibrahim v. Dep’t of Homeland Sec., 

538 F.3d 1250, 1254–56 (9th Cir. 2008) (Ibrahim I). We

affirmed the district court’s conclusions that § 46110(a) 

requires all challenges to TSA policies and procedures 

implementing the No Fly and other lists to be filed directly 

in the courts of appeals, that the federal agency and airline 

actions were not state actions under § 1983, and that the tort 
24 IBRAHIM V. DHS

claims against the federal officials in their official capacities 

and against the airline defendants were precluded. Id. at 

1256–58. We further held that the district court had personal 

jurisdiction over the claims against the TSA employee, who 

was sued in his individual capacity.9 Id. at 1258–59. We 

remanded the issue of standing to the district court to decide

in the first instance. Id. at 1254–56, 1256 n.9.

After we remanded the case, Dr. Ibrahim filed a Second 

Amended Complaint (SAC), alleging various Bivens, 

constitutional, § 1983, statutory, state tort, and 

Administrative Procedure Act (APA) claims against several 

federal agencies and federal officials in their official 

capacities (collectively, the Federal Defendants) and state 

and local government agencies, certain individuals in their 

individual capacities, and the U.S. Investigation Services, 

Inc. (collectively, the Non-Federal Defendants). Dr. Ibrahim

requested an injunction that would require the federal 

government to take her name off its terrorist watchlists, 

including the No Fly list, or, in the alternative, to provide 

procedures under which she could challenge her inclusion on 

those lists, in addition to other non-monetary requests and 

damages. The SAC also sought limited relief relevant to Dr. 

Ibrahim’s visa denial, but stopped short of attempting to 

force the government to issue her a visa.

Both the Federal Defendants and Non-Federal 

Defendants filed motions to dismiss with respect to the 

majority of the claims. In an order dated July 27, 2009, the 

 9 We held that although the TSA employee “lives in Virginia and 

has no ties to California,” the court had specific jurisdiction over Dr. 

Ibrahim’s claims against him because “(1) [he] purposefully directed his 

action (namely, his order to detain Ibrahim) at California; (2) [Dr.] 

Ibrahim’s claim arises out of that action; and (3) jurisdiction is 

reasonable.” Ibrahim I, 538 F.3d at 1258 (citation omitted).
IBRAHIM V. DHS 25

district court partially granted the Non-Federal Defendants’

motions to dismiss. Thereafter, all of the Non-Federal 

Defendants entered into cash settlements with Dr. Ibrahim.

In the same order, the district court again dismissed Dr. 

Ibrahim’s claims against the Federal Defendants. These 

claims alleged that the inclusion of Dr. Ibrahim’s name on 

the government’s terrorist watchlists violated her First 

Amendment right to freedom of association and her Fifth 

Amendment rights to due process and equal protection. She 

also alleged that the Federal Defendants violated the APA, 

arguing that the APA waives the sovereign immunity of the 

United States, thereby allowing her claims under the First 

and Fifth Amendments and authorizing remedies for those 

claims.

The district court held that while Dr. Ibrahim could seek 

damages for her past injury at SFO (and had successfully 

settled that part of the case), she had voluntarily left the 

United States and, as a nonimmigrant alien abroad, no longer 

had standing to assert constitutional and statutory claims to 

seek prospective relief. The district court held that, although 

nonimmigrant aliens in the United States had standing to

assert constitutional and statutory claims, a nonimmigrant 

alien who had voluntarily left the United States and was at 

large abroad had no standing to assert federal claims for 

prospective relief in our federal courts. Dr. Ibrahim filed a

second appeal.

We affirmed in part, but reversed as to prospective 

standing by holding that even a nonimmigrant alien who had 

voluntarily left the United States nonetheless has standing to 

litigate federal constitutional claims in the district courts of 

the United States so long as the alien had a “substantial 

voluntary connection” to the United States. Ibrahim v. Dep’t 

of Homeland Sec., 669 F.3d 983, 996 (9th Cir. 2012) 
26 IBRAHIM V. DHS

(Ibrahim II). We held that Dr. Ibrahim had such a 

connection because of her time at Stanford University, her 

continuing collaboration with professors in the United 

States, her membership in several professional organizations 

located in the United States, the invitations for her to return, 

and her network of close friends in the United States. Id. at 

993–94, 996. The government did not seek review by the

Supreme Court.

Following the second remand, the government again 

filed a motion to dismiss, which the district court denied.

Despite the unequivocal pronouncement from our court and 

the district court that Dr. Ibrahim had adequately pleaded 

Article III standing, the government argued over the next 

year that Dr. Ibrahim lacked standing. The government 

made this argument in its third motion to dismiss, its motion 

for summary judgment, its statements during trial, and its

proposed findings of fact and conclusions of law. The 

government persisted, even though it was abundantly clear 

that “the standing issue had gone the other way on appeal.”

From the February 2012 remand through trial, the parties 

and the district court were embroiled in discovery disputes 

involving the state secrets privilege, the law enforcement 

privilege, and assertions of “sensitive security information”

(SSI), 49 C.F.R. § 1520.5. The government invoked these 

as bases for withholding classified and otherwise allegedly 

sensitive government information from Dr. Ibrahim and her 

counsel.

On April 19, 2013, after years of litigation, the district 

court finally issued two orders granting in part and denying 

in part Dr. Ibrahim’s motions to compel discovery.

Resolving these disputes required the district court judge to 

review individually each of the documents Dr. Ibrahim 

sought. Most of this review was conducted ex parte and in 
IBRAHIM V. DHS 27

camera due to the privileged, classified, or secret nature of 

the documents. The state secrets privilege was upheld as to 

nearly all of the classified documents in question. The 

government’s assertion of other privileges regarding nonclassified documents was overruled as to the majority of the 

remaining documents. The district court compelled the 

government to release information specifically related to Dr. 

Ibrahim’s watchlist history, in addition to her current 

watchlist statuses. It also required the government to 

produce Federal Rule of Civil Procedure 30(b)(6) witnesses.

At last, Dr. Ibrahim and her attorneys were able to learn 

what the government had known all along. On May 2, 2013, 

the government stated that Dr. Ibrahim was inadvertently 

placed on the No-Fly list but did not explain the details of 

this mistake, or who was involved. On May 2, 2013, when 

the government responded to Dr. Ibrahim’s interrogatory 

requests, Dr. Ibrahim learned, for the first time, her historical 

and current watchlist statuses.10 On September 12, 2013, 

again over the government’s vigorous objections, Dr. 

Ibrahim’s attorneys deposed Agent Kelley and learned that 

her placement on the No Fly and IBIS watchlists was, in fact, 

 10 The government designated all of its interrogatory responses 

“attorneys’ eyes only,” which, under the protective order, meant that 

only Dr. Ibrahim’s attorneys were allowed to review information 

produced with this stamp, and Dr. Ibrahim herself was not permitted to 

review those documents. As a result, it is difficult to discern precisely 

when Dr. Ibrahim herself was able to learn certain information. 

However, with respect to information regarding her current and 

historical watchlist statuses, the district court concluded those were not 

protected by privilege in its April 2013 order, so it is likely counsel was 

able to inform Dr. Ibrahim of her watchlist statuses the day the 

interrogatory responses were filed.
28 IBRAHIM V. DHS

a mistake based on Agent Kelley’s misreading of the form.11 

In sum, the government failed to reveal that Dr. Ibrahim’s 

placement on the No Fly list was a mistake until two months 

before trial, and eight years after Dr. Ibrahim filed suit. And 

at all times, as the government vigorously contested Dr. 

Ibrahim’s discovery requests, and lodged over two hundred 

objections and instructions not to answer questions in 

depositions, the government was aware that she was not 

responsible for terrorism or any threats against the United 

States.

The government’s discovery games stretched up to and 

through trial. The government announced on at least two 

occasions that if it invoked the state secrets privilege to 

withhold information, then that evidence could not be relied 

upon by either side at trial. After making such

representations on the record, on September 13, 2013, the 

district court ordered the government to confirm that neither

party could use information withheld on grounds of state 

secrets privilege. The government affirmed it would not rely 

on any information withheld on grounds of privilege from 

Dr. Ibrahim. The government nevertheless reversed course 

during trial and sought to prevail by having this action 

dismissed due to its inability to disclose state secrets.

The government also filed a motion for summary 

judgment. A hearing was held on the government’s motion 

on October 31, 2013. Instead of discussing the merits of the 

summary judgment motion, the government used the vast 

majority of the hearing time to discuss whether or not the 

 11 Dr. Ibrahim first learned that Agent Kelley had participated in the 

2004 interview and that Kelley was personally responsible for 

nominating her to the TSDB during the deposition of the Acting Deputy 

Director of the TSC on May 29, 2013.
IBRAHIM V. DHS 29

trial should be open to the public and whether certain 

information listed on Dr. Ibrahim’s demonstratives was 

subject to various privileges. The district court ultimately 

declined to hear further argument and decided the motion on 

the papers.

The government’s motion for summary judgment was 

granted in limited part but mostly denied on November 4, 

2013. Dr. Ibrahim’s “exchange of information” claim based 

on the First Amendment was dismissed. Dr. Ibrahim’s 

claims based on procedural and substantive due process, 

equal protection, and First Amendment rights of expressive 

association and against retaliation proceeded to trial. The 

government raised lack of standing, yet again, and was 

denied, yet again. For the first time, and contrary to what it 

had represented before, the government further argued that 

summary judgment in its favor was appropriate based on the 

state secrets privilege, pursuant to our court’s decision in 

Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1079

(9th Cir. 2010) (en banc) (noting that even when evidence is 

excluded via an invocation of state secrets, the case may still 

need to be dismissed because “it will become apparent 

during the [United States v. Reynolds, 345 U.S. 1 (1953)12] 

 12 Analyzing claims under the Reynolds privilege involves three 

steps:

First, we must “ascertain that the procedural 

requirements for invoking the state secrets privilege 

have been satisfied.” Second, we must make an 

independent determination whether the information is 

privileged .... Finally, “the ultimate question to be 

resolved is how the matter should proceed in light of 

the successful privilege claim.”
30 IBRAHIM V. DHS

analysis that the case cannot proceed without privileged 

evidence, or that litigating the case to a judgment on the 

merits would present an unacceptable risk of disclosing state 

secrets”).

At the final pretrial conference, the government made 

what amounted to a motion for reconsideration of its 

previously denied motion for summary judgment on state 

secrets grounds. The government argued that the action 

should be dismissed because the core of the case had been 

excluded as state secrets. The motion was denied on several 

grounds. First, the government had failed to raise such an 

argument until weeks before trial. Second, it was too late 

and too unsettling for the government to reverse its prior 

position. Third, even under Jeppesen, 614 F.3d at 1080, the 

district court could not say with certainty that Dr. Ibrahim

would be unable to prove her case at trial or that the 

government would be absolutely deprived of a meritorious 

and complete defense. The district court planned to allow 

both sides to present their unclassified evidence through the 

“normal” trial procedure and then to allow the government 

to submit an ex parte and under seal submission to try to 

explain how its state secrets might bear on the actual trial

issues. Surprisingly, although no classified information was 

used at trial, the government made numerous privilege 

assertions and motions to close the courtroom. Due to these 

assertions, the district judge at least ten times “reluctantly”

asked the press and the public to leave the courtroom.

On December 2, 2013, the first day of trial, before

opening statements, Dr. Ibrahim’s counsel reported that Dr. 

 Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1202 (9th Cir. 

2007) (citations omitted) (quoting El-Masri v. United States, 479 F.3d 

296, 304 (4th Cir. 2007)).
IBRAHIM V. DHS 31

Ibrahim’s daughter—a U.S. citizen born in the United States 

and a witness disclosed on Dr. Ibrahim’s witness list—was 

not permitted to board her flight from Kuala Lumpur to 

attend trial, evidently because she too was now on the No 

Fly list. Consequently, Dr. Ibrahim’s daughter missed her 

flight and was forced to reschedule. The district court 

concluded this was a mistake, and the government quickly 

remedied this error.

After a one-week bench trial, in the first No Fly list trial 

ever conducted, the district court found in Dr. Ibrahim’s 

favor on her procedural due process claim and ordered the 

government to remove all references to the mistaken 

designations by Agent Kelley in 2004 on all terrorist 

watchlist databases and records; to inform Dr. Ibrahim of the 

specific subsection of the INA that rendered Dr. Ibrahim 

ineligible for a visa in 2009 and 2013; to inform Dr. Ibrahim 

she is no longer on the No Fly list and has not been since 

2005; and to inform Dr. Ibrahim that she is eligible to apply 

for a discretionary visa waiver under 8 U.S.C. 

§ 1182(3)(D)(iv) and 22 C.F.R. § 41.121(b)(1). The district 

court declined to reach Dr. Ibrahim’s substantive due 

process, equal protection, First Amendment, and APA 

claims, because “those arguments, even if successful, would 

not lead to any greater relief than already ordered.”

Having won an outstanding victory, Dr. Ibrahim’s 

lawyers petitioned for fees under the EAJA. In the district 

court’s April 15, 2014 fee order, although the district court

applauded the lawyers’ commitment to this difficult and 

unprecedented case, it awarded only limited compensation. 

The court acknowledged that Dr. Ibrahim “did not outright 

lose” on her substantive due process, equal protection, First 

Amendment, and APA claims, but treated those claims as 

“unsuccessful” when it calculated fees under Hensley. The
32 IBRAHIM V. DHS

district court found that her substantive due process and 

APA claims were related to the procedural due process claim 

on which she prevailed, so it allowed fees on these claims. 

But the court also ruled that her First Amendment and equal 

protection claims were not related to the successful claim, 

and denied fees for work performed on those claims. The 

district court also concluded that Dr. Ibrahim’s counsel was 

not entitled to fees for work performed on Dr. Ibrahim’s visa 

issues, the settlement with the Non-Federal Defendants, 

litigation of standing prior to Ibrahim II (although it 

permitted fees for time after Ibrahim II), litigation of 

privilege issues, and other miscellaneous work. The district 

court also found that the government did not act in bad faith, 

that Dr. Ibrahim’s counsel was not entitled to a rate 

enhancement beyond the $125 per hour fee13 stated in 

28 U.S.C. § 2412(d)(2)(A)(ii), and that counsel was not 

entitled to fees as discovery sanctions pursuant to Federal 

Rules of Civil Procedure 37 and 16. The district court 

appointed a special master to determine the appropriate 

award of fees and costs based on the district court’s findings.

Thereafter, the parties and the court engaged in a lengthy 

and contentious fee dispute before the special master. The 

district court ultimately adopted the special master’s 

findings and reduced Dr. Ibrahim’s fees for various 

witnesses and costs associated with those witnesses, 

expenses related to obtaining TSA clearance, costs that 

would be “reasonably charged” to the client, and costs for 

multiple copies of the same book; and rejected certain 

expenses for lack of supporting documentation or sufficient 

itemization. In total, Dr. Ibrahim sought $3,630,057.50 in 

market-rate attorneys’ fees and $293,860.18 in expenses. 

 13 The district court allowed a rate enhancement for James McManis 

because of his “distinctive knowledge and skills.”
IBRAHIM V. DHS 33

On October 9, 2014, the district court ultimately awarded Dr. 

Ibrahim $419,987.36 in fees and $34,768.71 in expenses. 

Dr. Ibrahim appealed the underlying legal framework the 

district court utilized to determine the fees she was eligible 

to recover, various specific reductions to eligible fees, and 

the striking of her objections to the special master’s 

recommendations.

On appeal, in the now-withdrawn panel opinion, our 

court adopted a number of the district court’s rulings under 

a different approach. Ibrahim v. U.S. Dep’t of Homeland 

Sec., 835 F.3d 1048 (9th Cir. 2016), reh’g en banc granted, 

878 F.3d 703 (9th Cir. 2017) (Ibrahim III). The three-judge

panel concluded that “it was not an abuse of discretion to 

find that [Dr.] Ibrahim’s unsuccessful claims were unrelated, 

because although the work done on those claims could have 

contributed to her ultimately successful claim, the facts and 

legal theories underlying [Dr.] Ibrahim’s claims make that 

result unlikely.” Id. at 1063. The panel rested this 

conclusion on the novel theory that, because the theories 

underlying claims the district court declined to reach were 

“mutually exclusive” to the successful claims, the unreached 

claims were unrelated. Id. at 1062–63. The panel also held 

that the district court incorrectly considered substantial 

justification at each stage of litigation; that the government 

did not act in bad faith; that the district court did not err in 

determining that Dr. Ibrahim had failed to abide by its page 

limits in objecting to the special master’s report and 

recommendation; and that the district court did not abuse its 

discretion in striking Dr. Ibrahim’s objections to the special 

master’s report and recommendation. Id. at 1052, 1065–66.

We now clarify that when a district court awards 

complete relief on one claim, rendering it unnecessary to 

reach alternative claims, the alternative claims cannot be 
34 IBRAHIM V. DHS

deemed unsuccessful for the purpose of calculating a fee 

award. We also reject the post hoc “mutual exclusivity” 

approach to determining whether “unsuccessful” claims are 

related to successful claims and reaffirm that Hensley sets 

forth the correct standard of “relatedness” for claims under 

the EAJA. And we reaffirm that in evaluating whether the 

government’s position is substantially justified, we look at 

whether the government’s and the underlying agency’s 

positions were justified as a whole and not at each stage.

III.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We 

review a district court’s award of fees under the EAJA for 

abuse of discretion. Thomas v. City of Tacoma, 410 F.3d 

644, 649 (9th Cir. 2005); Gonzales v. Free Speech Coal., 

408 F.3d 613, 618 (9th Cir. 2005); Schwarz v. Sec’y of 

Health & Human Servs., 73 F.3d 895, 900 (9th Cir. 1995). 

We review a district court’s finding on the question of bad 

faith for clear error. Cazares v. Barber, 959 F.2d 753, 754 

(9th Cir. 1992). We review the district court’s interpretation 

of the EAJA de novo. Edwards v. McMahon, 834 F.2d 796, 

801 (9th Cir. 1987). “[A] district court’s fee award will be 

overturned if it is based on an inaccurate view of the law or 

a clearly erroneous finding of fact.” Corder v. Gates, 

947 F.2d 374, 377 (9th Cir. 1991).

IV.

The parties now14 do not dispute that Dr. Ibrahim is 

entitled to attorneys’ fees under the EAJA. What they do 

 14 Before the district court, the government opposed Dr. Ibrahim’s

request for attorneys’ fees on substantial justification grounds, and it 

originally cross-appealed the entire award in this appeal. Before 
IBRAHIM V. DHS 35

dispute is whether the amount of fees the district court 

awarded resulted from a proper application of the EAJA and 

common law.

In enacting the EAJA, Congress stated:

For many citizens, the costs of securing 

vindication of their rights and the inability to 

recover attorney fees preclude resort to the 

adjudicatory process. . . . When the cost of 

contesting a Government order, for example, 

exceeds the amount at stake, a party has no 

realistic choice and no effective remedy. In 

these cases, it is more practical to endure an 

injustice than to contest it.

S. Rep. No. 96-253, at 5 (1979).

“The clearly stated objective of the EAJA is to eliminate 

financial disincentives for those who would defend against 

unjustified governmental action and thereby to deter the 

unreasonable exercise of Government authority.” Ardestani 

v. I.N.S., 502 U.S. 129, 138 (1991); see also Jean, 496 U.S. 

at 163 (“[T]he specific purpose of the EAJA is to eliminate 

for the average person the financial disincentive to challenge 

unreasonable governmental actions.”). Congress 

specifically intended the EAJA to deter unreasonable agency 

conduct. Jean, 496 U.S. at 163 n.11 (quoting the statement 

of purpose for the EAJA, Pub. L. No. 96-481, §§ 201–08, 

94 Stat. 2321, 2325–30 (1980)).

 argument, however, the government moved to voluntarily dismiss the 

cross-appeal and paid to Dr. Ibrahim the now uncontested amounts of 

attorneys’ fees and expenses awarded by the district court.
36 IBRAHIM V. DHS

The policy behind the EAJA “is to encourage litigants to 

vindicate their rights where any level of the adjudicating 

agency has made some error in law or fact and has thereby 

forced the litigant to seek relief from a federal court.” Li v. 

Keisler, 505 F.3d 913, 919 (9th Cir. 2007). “[W]e have 

consistently held that regardless of the government’s 

conduct in the federal court proceedings, unreasonable 

agency action at any level entitles the litigant to EAJA fees.” 

Id.

“The EAJA applies to a wide range of awards in which 

the cost of litigating fee disputes would equal or exceed the 

cost of litigating the merits of the claim.” Jean, 496 U.S. at 

163–64. The EAJA was designed to remedy this situation 

by providing for an award of reasonable attorneys’ fees to a 

“prevailing party” in a “civil action” unless the position 

taken by the United States at issue “was substantially 

justified” or “special circumstances make an award unjust.” 

Id. at 158; 28 U.S.C. § 2412(d)(1)(A).

The EAJA specifically provides:

Except as otherwise specifically provided by 

statute, a court shall award to a prevailing 

party other than the United States fees and 

other expenses, in addition to any costs 

awarded pursuant to subsection (a), incurred 

by that party in any civil action (other than 

cases sounding in tort), including 

proceedings for judicial review of agency 

action, brought by or against the United 

States in any court having jurisdiction of that 

action, unless the court finds that the position 

of the United States was substantially 

justified or that special circumstances make 

an award unjust.
IBRAHIM V. DHS 37

28 U.S.C. § 2412(d)(1)(A).

Thus, as the Supreme Court held in Jean:

eligibility for a fee award in any civil action 

requires: (1) that the claimant be “a 

prevailing party”; (2) that the Government’s 

position was not “substantially justified”; 

(3) that no “special circumstances make an 

award unjust”; and, (4) pursuant to 28 U.S.C. 

§ 2412(d)(1)(B), that any fee application be 

submitted to the court within 30 days of final 

judgment in the action and be supported by 

an itemized statement.

496 U.S. at 158.

The district court correctly concluded that Dr. Ibrahim 

was the prevailing party in this case. The third and fourth 

Jean factors are not at issue. The only remaining issue as to 

Dr. Ibrahim’s entitlement to fees is whether the 

government’s position was substantially justified.

A. Substantial Justification

Where, as here, a movant under the EAJA has 

established that it is a prevailing party, “the burden is on the 

government to show that its litigation position was 

substantially justified on the law and the facts.” Cinciarelli 

v. Reagan, 729 F.2d 801, 806 (D.C. Cir. 1984). To establish 

substantial justification, the government need not establish 

that it was correct or “justified to a high degree”—indeed, 

since the movant is established as a prevailing party it could 

never do so—but only that its position is one that “a 

reasonable person could think it correct, that is, [that the 
38 IBRAHIM V. DHS

position] has a reasonable basis in law and fact.”15 Pierce v. 

Underwood, 487 U.S. 552, 565, 566 n.2 (1988). That the 

government lost (on some issues) does not raise a 

presumption that its position was not substantially justified. 

Edwards, 834 F.2d at 802 (citation omitted). Fees may be 

denied when the litigation involves questions of first 

impression, but “whether an issue is one of first impression 

is but one factor to be considered.” United States v. Marolf, 

277 F.3d 1156, 1162 n.2 (9th Cir. 2002).

When evaluating the government’s “position” under the 

EAJA, we consider both the government’s litigation position 

and the “action or failure to act by the agency upon which 

the civil action is based.” 28 U.S.C. § 2412(d)(1)(B). Thus, 

the substantial justification test is comprised of two 

inquiries, one directed toward the government agency’s 

conduct, and the other toward the government’s attorneys’ 

conduct during litigation. See Gutierrez v. Barnhart, 

274 F.3d 1255, 1259 (9th Cir. 2001). The test is an inclusive 

one; we consider whether the government’s position “as a 

whole” has “a reasonable basis in both law and fact.” Id. at 

1258, 1261; see also Meier v. Colvin, 727 F.3d 867, 870 (9th 

Cir. 2013).

The district court, invoking our decision in Corbin v. 

Apfel, 149 F.3d 1051 (9th Cir. 1998), concluded that, in 

exceedingly complex cases, a court may appropriately 

determine whether the government was substantially 

justified at each “stage” of the litigation and make a fee 

award apportioned to those separate determinations. It 

accordingly disallowed fees for discrete positions taken by 

the government at different stages of the litigation because, 

 15 The partial dissent is incorrect to view the issue as solely a factual 

one, as we must consider the law as applied to the facts.
IBRAHIM V. DHS 39

in its view, the government’s positions in each instance were 

substantially justified. This approach was error, as it is 

contrary to the Supreme Court’s instructions in Jean.

In Jean, the Supreme Court rejected the government’s 

argument that it could assert a “‘substantial justification’ 

defense at multiple stages of an action.” 496 U.S. at 158–

59. Examining the statutory language, the Court noted the 

complete absence of any textual support for this position. Id.

at 159. Moreover, “[s]ubsection (d)(1)(A) refers to an award 

of fees ‘in any civil action’ without any reference to separate 

parts of the litigation, such as discovery requests, fees, or 

appeals.” Id. The Court also noted that “[t]he reference to 

‘the position of the United States’ in the singular also 

suggests that the court need make only one finding about the 

justification of that position.” Id. An amendment to the 

EAJA made clear that the “‘position of the United States’ 

means, in addition to the position taken by the United States 

in the civil action, the action or failure to act by the agency 

upon which the civil action is based.” Pub. L. No. 99-80, 

§ 2(c)(2)(B), 99 Stat. 183, 185 (1985) (codified at 28 U.S.C. 

§ 2412(d)(2)(D)). As the Court reiterated, “Congress’ 

emphasis on the underlying Government action supports a 

single evaluation of past conduct.” Jean, 496 U.S. at 159 n.7 

(citing H.R. Rep. No. 98-992, at 9, 13 (1984) (“[T]he 

amendment will make clear that the Congressional intent is 

to provide for attorney fees when an unjustifiable agency 

action forces litigation, and the agency then tries to avoid 

such liability by reasonable behavior during the litigation.”), 

and S. Rep. No. 98-586, at 10 (1984) (“Congress expressly 

recognized ‘that the expense of correcting error on the part 

of the Government should not rest wholly on the party whose 

willingness to litigate or adjudicate has helped to define the 

limits of Federal authority.’” (citation omitted))). The Jean 

Court concluded that “[t]he single finding that the 
40 IBRAHIM V. DHS

Government’s position lacks substantial justification, like 

the determination that a claimant is a ‘prevailing party,’ thus 

operates as a one-time threshold for fee eligibility.” Id. at 

160.

In sum, “[a]ny given civil action can have numerous 

phases,” as evidenced by the case at hand. Id. at 161. But 

the Supreme Court clearly instructed, and almost all courts 

have clearly understood,16 that “the EAJA—like other fee-

 16 All but two circuits agree that “the EAJA—like other fee-shifting 

statutes—favors treating a case as an inclusive whole, rather than as 

atomized line-items.” See Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 

498–99 (6th Cir. 2014) (adopting a single inquiry test and noting that 

district courts cannot simply compare the number of successful claims to 

the number of unsuccessful claims in a single appeal) (“Rather, the 

question is whether the government’s litigating position . . . is justified 

to a degree that could satisfy a reasonable person and whether it was 

supported by law and fact.” (internal quotation marks and citations 

omitted)); United States v. 515 Granby, LLC, 736 F.3d 309, 315–17 (4th 

Cir. 2013) (considering the government’s pre- and post-litigation 

conduct as a whole and noting that “an unreasonable prelitigation 

position will generally lead to an award of attorney’s fees under the 

EAJA”); United States v. Hurt, 676 F.3d 649, 653–54 (8th Cir. 2012) 

(examining government’s conduct as a whole); Gomez-Beleno v. Holder, 

644 F.3d 139, 145 n.3 (2d Cir. 2011) (considering the government’s 

position as a whole rather than making separate substantial justification 

findings for different stages of the proceedings); Wagner v. Shinseki, 

640 F.3d 1255, 1259 (Fed. Cir. 2011) (assessing the government’s 

litigation position in totality); Saysana v. Gillen, 614 F.3d 1, 5–7 (1st Cir. 

2010) (same); Hackett v. Barnhart, 475 F.3d 1166, 1173–74 (10th Cir. 

2007) (same); Sims v. Apfel, 238 F.3d 597, 602 (5th Cir. 2001) (same); 

United States v. Jones, 125 F.3d 1418, 1428–29 (11th Cir. 1997) (same); 

Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 131 (3d Cir. 1993) 

(adopting a single inquiry test, though contrary to our holding in this 

case, requiring a district court to “evaluate every significant argument

made by an agency ... to determine if the argument is substantially 
IBRAHIM V. DHS 41

shifting statutes—favors treating a case as an inclusive 

whole, rather than as atomized line-items.” Id. at 161–62.

Our decision in Corbin is inapposite because that case 

hinged on jurisdictional features present when we review 

agency actions, but not present here. 149 F.3d 1051. In 

Corbin, a case involving judicial review of the agency’s 

denial of disability benefits, we upheld EAJA fee awards that 

were apportioned to successive stages of the underlying 

 justified” as “necessary to . . . determine whether, as a whole, the 

Government’s position was substantially justified”).

The D.C. and Seventh Circuits stand alone in declining to adopt a 

single inquiry test. The D.C. Circuit has rejected a reading of Jean that 

would preclude a claim-by-claim determination on the ground that such 

a rule would render the EAJA a “virtual nullity” because government 

conduct is nearly always grouped with or part of some greater, and 

presumably justified, action. Air Transport Ass’n of Canada v. F.A.A., 

156 F.3d 1329, 1332 (D.C. Cir. 1998). In the same vein, the Seventh 

Circuit has cautioned against taking “judicial language out of context,” 

reasoning that Jean “does not address the question whether allocation is 

permissible under the [EAJA], thus allowing an award of fees for the part 

of the government’s case that was not substantially justified.” Gatimi v. 

Holder, 606 F.3d 344, 350 (7th Cir. 2010). We understand these 

concerns, but we think that Congress clearly contemplated the denial of 

attorneys’ fees even where some of the litigation conduct was unjustified 

when it used the qualifying term “substantial” rather than “total” or 

“complete.” See 28 U.S.C. § 2412(d)(1)(A); see also United States v. 

Rubin, 97 F.3d 373, 375–76 (9th Cir. 1996) (affirming the district court’s 

denial of fees because the government was substantially justified in most, 

but not all, of its positions). Further, we conclude that this happenstance 

will predominantly affect cases challenging the government agency’s

litigation position, and likely have little effect in cases where the 

government agency’s conduct is unjustified, as EAJA “fees generally 

should be awarded where the government’s underlying action was 

unreasonable even if the government advanced a reasonable litigation 

position.” Marolf, 277 F.3d at 1159.
42 IBRAHIM V. DHS

litigation, in which we reversed and remanded for further 

proceedings before the agency.

17 Id. at 1052. Because 

Corbin prevailed upon judicial review and was the prevailing 

party at that stage—whatever the ultimate disposition of his 

disability claim—he was entitled to EAJA attorneys’ fees. 

Id. at 1053. But, the administrative review context is unique 

because the different stages of the litigation are reviewed by 

different, unconnected quasi-judicial systems. In 

administrative review cases, we award fees when we vacate 

an administrative determination and require the agency to 

conduct new proceedings. See, e.g., Rueda-Menicucci v. 

I.N.S., 132 F.3d 493, 495 (9th Cir. 1997) (awarding fees to 

prevailing petitioners on a petition for review from a Board 

of Immigration Appeals proceeding without regard to 

whether they would later succeed on underlying asylum 

claims, explaining that “the remand terminates judicial 

proceedings and results in the entry of a final judgment”); 

Kelly v. Nicholson, 463 F.3d 1349, 1355–56 (Fed. Cir. 2006) 

(reversing and remanding denial of EAJA fees after an 

erroneous Agent Orange disability determination by the 

Department of Veterans Affairs); Former Emps. of Motorola 

Ceramic Prods. v. United States, 336 F.3d 1360, 1361 (Fed. 

Cir. 2003) (vacating and remanding denial of EAJA fees 

after an erroneous analysis of readjustment of benefits by the 

Department of Labor). This eligibility for fees arises 

whether the plaintiff challenges administrative action under 

a statute specifically providing for review, as with the 

examples above, or under an umbrella statute authorizing 

challenges to agency action, such as the APA. See, e.g.,

 17 “Remand” is something of a misnomer, albeit one oft used in 

agency cases, as in fact “the civil action seeking judicial review of the 

. . . final decision,” Shalala v. Schaefer, 509 U.S. 292, 299 (1993) 

(internal citation and quotation marks omitted), is terminated, not

remanded.
IBRAHIM V. DHS 43

Wood v. Burwell, 837 F.3d 969, 977 (9th Cir. 2016) 

(granting “prevailing party” status for success on an APA 

claim alleging procedural deficiencies, notwithstanding 

plaintiffs’ later loss on their “substantive” claims). By 

contrast, the various stages at issue here were all part of one 

litigation in federal court; the case was never returned to an 

agency for further proceedings. Therefore, Corbin does not 

apply.18

The district court thus erred in its piecemeal approach to 

substantial justification. Most fundamentally, the agency 

position upon which these going-on-thirteen years of 

litigation was based was not justified at all, much less 

substantially. The district court correctly recognized as 

much, finding: “The original sin—Agent Kelley’s mistake 

and that he did not learn about his error until his deposition 

eight years later—was not reasonable” under the EAJA. 

Whether the error is attributable to the failure to train Agent 

Kelley, the counter-intuitive nature of the form (check the 

categories that do NOT apply), the lack of cross-checking or 

other verification procedures, or anti-Muslim animus (Agent 

Kelley interviewed Dr. Ibrahim on December 23, 2004, as 

part of an International Terrorism Investigation), the precise 

cause is irrelevant to, and does not mitigate, the lack of any 

basis to place Dr. Ibrahim on the list, nor does it justify a 

reduction in fees.19 See Marolf, 277 F.3d at 1159 (holding 

 18 And even if Corbin did apply to this case, the district court 

misapplied Corbin because it evaluated whether each individual

argument at each stage of the litigation was substantially justified, rather 

than the government’s position at each stage as a whole.

19 We make no findings, nor can we on appeal, as to how this 

mistaken placement came about, and we ascribe no nefarious 

motivations to the government as an entity. Again, we cannot know on 
44 IBRAHIM V. DHS

that EAJA “fees generally should be awarded where the 

government’s underlying action was unreasonable even if 

the government advanced a reasonable litigation position”).

The district court correctly concluded that the 

government’s litigation position—to defend the 

indefensible, its No Fly list error—was not reasonable. As 

the district court stated, “[t]he government’s defense of such 

inadequate due process in Dr. Ibrahim’s circumstance—

when she was concededly not a threat to national security—

was not substantially justified.”

Those conclusions should have been the end of the 

district court’s EAJA eligibility analysis. After the 

government engaged in years of scorched earth litigation, it 

finally conceded during trial in December 2013 that Dr. 

Ibrahim is “not a threat to our country. She does not pose 

(and has not posed) a threat of committing an act of 

international or domestic terrorism with respect to an 

aircraft, a threat to airline passenger or civil aviation 

security, or a threat of domestic terrorism.” But the 

government knew this in November 2004, when Agent 

Kelley completed the form; it knew it in January 2005, when 

the DHS agent told Dr. Ibrahim she was not on the No Fly 

list; and it was well aware of it two weeks after Dr. Ibrahim 

filed the underlying action, when a government agent 

ordered her “Remove[d] from ALL watchlisting supported 

systems (For terrorist subjects: due to closure of case AND 

no nexus to terrorism)” and further stated that Dr. Ibrahim 

was not qualified for placement on either the No Fly or TSA 

Selectee lists. Yet knowing this, the government essentially 

 

this record precisely why Dr. Ibrahim’s name was listed on the TSDB 

watchlist to begin with.
IBRAHIM V. DHS 45

doubled-down over the course of the litigation with a noholds-barred defense.

That some of the arguments made along the way by the 

government attorneys passed the straight face test until they 

were reversed on appeal does not persuade us that the 

government’s position was substantially justified.20 And the 

court is to consider the government agencies’ conduct during 

 20 We do not find that the government’s defense of this litigation 

was unreasonable at all points of the litigation. Instead, what was not 

substantially justified was the government’s continued defense of issues 

even after the reasons justifying their defense disappeared. For example, 

the government was justified in initially raising standing arguments, but 

was not justified in continuing to raise the same meritless standing 

arguments on numerous occasions once that issue had been definitively 

resolved by both our court and the district court. In a similar vein, while 

the government may have been justified in defending this litigation and 

refusing to tell Dr. Ibrahim her No Fly list status pursuant to its Glomar

policy—a policy whereby the government refuses to confirm or deny the 

existence of documents in response to a Freedom of Information Act 

request, see N.Y. Times v. U.S. Dep’t of Justice, 756 F.3d 100, 105 (2d 

Cir. 2014), amended by 758 F.3d 436 (2d Cir. 2014)—any justification 

it had to defend Dr. Ibrahim’s No Fly list status vanished once she was 

made aware of her watchlist statuses and it had admitted its mistake in 

2013.

Further, when considering the government’s litigation position, we 

also consider the government’s positions on discovery and other nonmerits issues, i.e., the government’s conduct as a whole. See United 

States v. Rubin, 97 F.3d 373, 375 (9th Cir. 1996) (citing United States v. 

Powell, 379 U.S. 48, 57–58 (1964)) (considering government’s conduct 

during discovery when performing substantial justification inquiry). 

Here, as discussed at length below, 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.
46 IBRAHIM V. DHS

the course of this litigation as well. See 28 U.S.C. 

§ 2412(d)(2)(D) (“‘position of the United States’ means, in 

addition to the position taken by the United States in the civil 

action, the action or failure to act by the agency upon which 

the civil action is based”). From the suit’s inception, the 

government agencies’ actions, including their on-again, offagain 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. 

Indeed, as a consequence of the government’s conduct, Dr. 

Ibrahim was deposed in London, England, as opposed to the 

Northern District of California—which also drove up the 

costs and fees.

In sum, neither the agencies’ conduct nor the 

government’s litigation position was substantially 

justified.21 The EAJA mandates that attorneys’ fees be 

 21 The partial dissent argues that “Supreme Court precedent requires 

that we allow the district court to make [the] determination” as to 

whether the government’s position was substantially justified. 

Concurring & Dissenting Op. at 78 (citing Pierce, 487 U.S. at 560); see 

also id. at 78–81. Not so. The dissent is actually quoting from the 

portion of the Pierce decision where Justice Scalia is deciding which of 

the three general standards of review should apply to the district court’s 

“substantial justification” determination—de novo, clear error, or abuse 

of discretion. Pierce, 487 U.S. at 558. He decides that the abuse of 

discretion standard applies because the appropriate degree of deference 

is inherent in the standard itself. Id. at 559–63. Here, we applied the 

abuse of discretion standard and concluded the district court abused its 

discretion. Notably, in Pierce, the Court also declared that an abuse of 

discretion standard will “implement our view that a ‘request for 

attorney’s fees should not result in a second major litigation.’” Id. at 563 

(quoting Hensley, 461 U.S. at 437). But that is exactly what has 

happened here. See infra Part V. We have already engaged in the 
IBRAHIM V. DHS 47

awarded to Dr. Ibrahim’s attorneys, subject only to 

reasonableness review. Jean, 496 U.S. at 161. “It remains

for the district court to determine what fee is ‘reasonable.’” 

Hensley, 461 U.S. at 433.

B. Reasonableness

In Hensley, the Supreme Court set out a two-pronged

approach for determining the amount of fees to be awarded 

when a plaintiff prevails on only some of his claims for relief 

or achieves “limited success.” Sorenson v. Mink, 239 F.3d 

1140, 1147 (9th Cir. 2001) (citing Hensley, 461 U.S. at 436–

37). First, we ask, “did the plaintiff fail to prevail on claims 

that were unrelated to the claims on which he succeeded?” 

Hensley, 461 U.S. at 434. This inquiry rests on whether the 

“related claims involve a common core of facts or are based 

on related legal theories,” Webb v. Sloan, 330 F.3d 1158, 

1168 (9th Cir. 2003) (citing Hensley, 461 U.S. at 435), with 

“the focus . . . on whether the claims arose out of a common 

course of conduct,” id. at 1169 (emphasis added) (citing 

Schwarz, 73 F.3d at 903 (interpreting Hensley)). Second, we 

ask whether “the plaintiff achieve[d] a level of success that 

makes the hours reasonably expended a satisfactory basis for 

making a fee award?” Hensley, 461 U.S. at 434. If the court 

concludes the prevailing party achieved “excellent results,”

it may permit a full fee award—that is, the entirety of those 

hours reasonably expended on both the prevailing and 

unsuccessful but related claims. Id. at 435; Schwarz, 73 F.3d 

at 905–06.

 “unusual expense” of reviewing over 7,000 pages of record and over 

1,000 pages of trial exhibits, Pierce, 487 U.S. at 560, and we see no 

further need to triplicate this work.
48 IBRAHIM V. DHS

1. “Unsuccessful Claims”

The district court erroneously determined that Dr. 

Ibrahim was entitled to reasonable fees and expenses with 

respect to only her procedural due process claim, which 

provided her with substantial relief, and her related 

substantive due process and APA claims. Because Dr. 

Ibrahim’s equal protection, APA, substantive due process, 

and First Amendment claims “would not lead to any greater 

relief than [what the district court had] already ordered,” the 

district court declined to reach them. The district court then 

treated these unreached claims as unsuccessful, even while 

acknowledging that Dr. Ibrahim “did not outright lose on 

these claims,” and disallowed counsel’s reasonable fees and 

expenses on the “unrelated” First Amendment and equal 

protection claims. This overall approach was error.

The Hensley Court recognized that in complex civil 

rights litigation, plaintiffs may raise numerous claims, not all 

of which will be successful: “Litigants in good faith may 

raise alternative legal grounds for a desired outcome, and the 

court’s rejection of or failure to reach certain grounds is not 

a sufficient reason for reducing a fee. The result is what 

matters.” Hensley, 461 U.S. at 435 (emphasis added). And 

where, as here, “a plaintiff has obtained excellent results, his 

attorney should recover a fully compensatory fee.” Id. The 

district court’s rationale—that because Dr. Ibrahim won 

substantial relief on one claim, and it was therefore 

unnecessary to reach her other equally pursued claims that 

could also lead to the same relief, no fees were available for 

the unreached claim—turns Hensley on its head.

We are aware of no court that has held that a plaintiff 

who obtains full relief on some claims, thereby rendering it 

unnecessary to reach the remaining claims, “lost” on the 

unreached claims. When confronted with this question, our 
IBRAHIM V. DHS 49

sister circuits that have addressed the issue have uniformly 

declined to adopt the district court’s analysis. The Sixth 

Circuit “decline[d] the government’s invitation to apportion 

[plaintiff’s] attorney fees to the single claim addressed in 

[its] previous opinion.” Sakhawati v. Lynch, 839 F.3d 476, 

480 (6th Cir. 2016). The Eighth Circuit also refused to 

reduce fees where the district court found in plaintiffs’ favor 

on their state claim without reaching the federal claims, 

because plaintiffs’ federal claims “were alternative grounds 

for the result the district court reached” and “plaintiffs fully 

achieved [their] goal by prevailing on their state 

constitutional claim.” Emery v. Hunt, 272 F.3d 1042, 1047 

(8th Cir. 2001). And the Seventh Circuit rejected 

defendants’ argument that plaintiff did not succeed on her 

sexual harassment claim where “the court did not find in 

[defendant’s] favor on the sexual harassment claim; it 

merely did not reach the merits of the issue.” Dunning v. 

Simmons Airlines, Inc., 62 F.3d 863, 874 (7th Cir. 1995).

We agree with our sister circuits that a district court’s 

“failure to reach” certain grounds does not make those 

grounds “unsuccessful,” and conclude that the district court 

clearly erred in holding that Dr. Ibrahim’s unreached claims 

were “unsuccessful.”

2. Related Claims

The district court and the original panel exacerbated this 

error in analyzing whether the claims the district court did 

not reach were related to her successful claims. The district 

court correctly concluded that Dr. Ibrahim’s substantive due 

process and APA claims were related to her prevailing 

procedural due process claim and allowed recovery of some 

of those fees and expenses. Without much analysis, 

however, the district court also concluded that her equal 

protection and First Amendment claims were not related 
50 IBRAHIM V. DHS

“because they involved different evidence, different 

theories, and arose from a different alleged course of 

conduct.” The three-judge panel stepped into the breach 

with its newly devised “mutually exclusive” rationale to 

determine that the claims were unrelated because, after trial, 

the district court found that Dr. Ibrahim was placed on the 

No Fly list due to negligence, and her First Amendment and 

equal protection claims alleged intentional discrimination. 

The three-judge panel concluded that the two mens rea 

requirements were “mutually exclusive.”

But both the district court and the now-withdrawn 

opinion failed to follow clear precedent to the contrary. The 

Court made clear in Hensley that, while hours spent on an 

unsuccessful claim “that is distinct in all respects from [the 

plaintiff’s] successful claim” should be excluded, “[w]here 

a lawsuit consists of related claims, a plaintiff who has won 

substantial relief should not have his attorney’s fee reduced 

simply because the district court did not adopt each 

contention raised.” 461 U.S. at 440. Construing the Hensley

Court’s statement that claims are “unrelated” if they are 

“entirely distinct and separate” from the prevailing claims, 

we have held that “related claims involve a common core of 

facts or are based on related legal theories.” Webb, 330 F.3d 

at 1168 (citations omitted). We do not require commonality 

of both facts and law to conclude that claims are related. Id. 

Rather “the focus is to be on whether the unsuccessful and 

successful claims arose out of the same ‘course of conduct.’ 

If they didn’t, they are unrelated under Hensley.” Schwarz, 

73 F.3d at 903. The three-judge panel’s introduction of the 

mutual-exclusivity test is contrary to Supreme Court 
IBRAHIM V. DHS 51

precedent,22 our precedent,23 and the precedent of every 

other circuit interpreting Hensley that has addressed the 

question.24 We are aware of no other court that has adopted 

 22 See, e.g., Hensley, 461 U.S. at 438 (concluding that, despite the 

differences in legal theories and some facts, “[g]iven the interrelated 

nature of the facts and legal theories in this case, the District Court did 

not err in refusing to apportion the fee award mechanically on the basis 

of respondents’ success or failure on particular issues”).

23 See, e.g., Webb, 330 F.3d at 1169 (holding that the plaintiff’s 

unsuccessful false arrest claim was “unquestionably” related to the 

successful claims for false imprisonment and malicious prosecution, and 

allowing his attorney to recover fees for time spent in pursuit of that 

claim because “all [of plaintiff’s] claims arose out of a common core of 

facts and a common course of conduct: Plaintiff’s arrest, detention, and 

prosecution”); see also Thorne v. City of El Segundo, 802 F.2d 1131, 

1142 (9th Cir. 1986) (reasoning that a police department clerk-typist’s

claims for discriminatory hiring and unconstitutionally obtained 

information could be related because they both concerned a polygraph 

interview she underwent during which the department discussed her 

sexual history); cf. Schwarz, 73 F.3d at 902–04 (determining that an 

employee’s claims of employment discrimination against offices in 

Phoenix, Arizona and Portland, Oregon were distinct because they were 

predicated on independently discriminatory conduct by different actors, 

relating to different employment positions, in different states).

24 See, e.g., Murphy v. Smith, 864 F.3d 583, 586 (7th Cir. 2017) 

(“Where claims are closely related, however, a plaintiff who obtains 

excellent results should recover a fully compensatory fee even if he did 

not prevail on every contention in the lawsuit or if a court rejected or did 

not reach certain grounds supporting the excellent result.” (citation 

omitted)); Sakhawati v. Lynch, 839 F.3d 476, 480 (6th Cir. 2016) 

(declining to reduce fees where all of the claims pertained to one asylum 

application and related evidence); SecurityPoint Holdings, Inc. v. 

Transp. Sec. Admin., 836 F.3d 32, 41 (D.C. Cir. 2016) (“We believe that 

[the plaintiff’s] petition for review presented only one claim for relief—

that TSA’s denial of the cease-and-desist request was unlawful and must 

be set aside. Its assertion of several distinct grounds does not create 

multiple claims. But even if we treated the various grounds as separate 
52 IBRAHIM V. DHS

 claims, they are related in the sense meant by Hensley.” (citation 

omitted)); Wal-Mart Stores, Inc. v. Barton, 223 F.3d 770, 773 (8th Cir. 

2000) (applying Hensley to 42 U.S.C. § 2000e-5(k) and finding that the 

plaintiff’s “state claims of assault and battery, outrage, and negligent 

retention shared a common core of facts with her Title VII claims, all of 

which arose from [the defendant’s] alleged sexual harassment of [the 

plaintiff]”); United States v. Jones, 125 F.3d 1418, 1430 (11th Cir. 1997)

(“[U]nder Hensley, a plaintiff who has prevailed against the United 

States on one claim may recover for all the hours reasonably expended 

on the litigation even though he or she failed to prevail on other claims 

involving a common core of facts or related legal theories.”); Jane L. v. 

Bangerter, 61 F.3d 1505, 1512 (10th Cir. 1995) (“We have refused to 

permit the reduction of an attorneys fee request if successful and 

unsuccessful claims are based on a ‘common core of facts.’ . . . Claims 

are also related to each other if based on ‘related legal theories.’” 

(citations omitted)); Keely v. Merit Sys. Prot. Bd., 793 F.2d 1273, 1275–

76 (Fed. Cir. 1986) (rejecting the government’s argument that the court 

should reduce attorneys’ fees and individually evaluate each of the 

plaintiff’s separate arguments where the plaintiff only prevailed on one); 

Citizens Council of Del. Cty. v. Brinegar, 741 F.2d 584, 596 (3d Cir. 

1984) (concluding that “it is clear that there was a sufficient 

interrelationship among the essential claims advanced by the plaintiff in 

the course of the litigation that the district court was not required to 

apportion fees based on the success or failure of any particular legal 

argument advanced by the plaintiffs”); cf. Paris v. U.S. Dep’t of Hous. 

& Urban Dev., 988 F.2d 236, 240 (1st Cir. 1993) (concluding, in the 

context of analyzing a related provision of the Fair Housing Act, that if 

the case involves what is essentially a single claim arising from “a 

common nucleus of operative fact,” and the plaintiff advances separate 

legal theories that “are but different statutory avenues to the same goal,” 

then all of the time should be compensable), overruled on other grounds 

by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & 

Human Res., 532 U.S. 598 (2001).

Only the Second Circuit has interpreted Hensley to allow the 

lodestar reductions in cases where multiple claims involve a common 

nucleus of fact. Kassim v. City of Schenectady, 415 F.3d 246, 256 (2d 

Cir. 2005) (“[A] district judge’s authority to reduce the fee awarded to a 

prevailing plaintiff below the lodestar by reason of the plaintiff’s ‘partial 

or limited success’ is not restricted . . . to cases of multiple discrete 
IBRAHIM V. DHS 53

the mutual-exclusivity test, and we now disavow its use as a 

standard for relatedness.

All of Dr. Ibrahim’s claims arose from a “common 

course of conduct” and are therefore related under Hensley. 

See Webb, 330 F.3d at 1169. The First Amended Complaint 

at bottom was a challenge to “defendants’ administration, 

management, and implementation of the ‘No-Fly List.’” 

Specifically, Dr. Ibrahim alleged that the manner in which 

the government created, maintained, updated, and 

disseminated the No Fly list led to the humiliating treatment 

she experienced at SFO in January 2005 and afterwards, as 

she was unable to learn whether she was on or off the list or 

why she was placed there in the first place. She alleged 

several alternative theories for this treatment, five of which 

ultimately went to trial against the federal government. That 

the government’s actions arose from negligence or 

unconstitutional animus could not have been known until the 

case was tried, and we still do not know whether, in addition 

to Agent Kelley’s negligence in placing her on the No Fly 

list, the government’s initial interest in Dr. Ibrahim stemmed 

from its allegedly heightened interest in foreign students 

from Muslim countries here on U.S. student visas,25 or her 

 theories . . . .”). The Fourth and Fifth Circuits have not yet reached this 

issue. See Vaughns by Vaughns v. Bd. of Educ. of Prince George’s Cty., 

770 F.2d 1244, 1245 (4th Cir. 1985) (affirming the district court’s fee 

determination based on the standard of review, and not reaching whether 

its relatedness analysis, which focused on whether the claims arose from 

a common course of conduct, was accurate).

25 In opening argument at trial, Dr. Ibrahim’s attorney Elizabeth 

Pipkin stated:

In another Homeland Security presidential directive, 

the president calls for the end of abuse of student visas 
54 IBRAHIM V. DHS

husband’s recent visit, or her regular attendance at a mosque,

or her involvement in the Islamic Society of Stanford 

University, which, if true, would have shown discriminatory 

intent. And because the district court did not reach the First 

Amendment and equal protection claims, we will never 

know whether placement on the TSDB was a result of 

discrimination on the basis of her race, religion, country of 

origin, or association with Muslims and Muslim groups.

There is no question that all of these claims arise from 

the government’s common course of conduct toward Dr. 

Ibrahim. To hold otherwise would ignore the realities of 

lawyering. As here, the key question in a lawsuit is often not 

what happened—but why. Before the litigation begins and 

while it is ongoing, the plaintiff and her lawyers cannot 

know for sure why someone else did something, but may, as 

here, have evidence suggesting various possibilities. So, as 

here, the plaintiff raises alternative claims and theories as to 

 

and increased the scrutiny of foreign students during 

the time that Dr. Ibrahim was studying at Stanford. In 

the months prior to the November 2004 presidential 

election and continuing up until the inauguration, the 

government ramped up its efforts to interrogate 

Muslims in America in a national dragnet called the 

October Plan, or Operation Front Line.

The government’s decision to target foreign students 

had a strong effect on the Muslim student community 

at Stanford. That community emailed its members, 

including Dr. Ibrahim, to advise them that there may 

be an increased likelihood that law enforcement would 

contact them and that if they were contacted, they 

should cooperate.

The district court never made a factual finding regarding whether this 

allegation was true.
IBRAHIM V. DHS 55

why something was done, some of which may be ultimately 

inconsistent, with regard to a single set of facts. The 

plaintiff’s claims are then tested by dispositive motions,

discovery, and perhaps (as happened here) trial. The fact 

that one claim or theory is eventually determined to be true 

does not mean that the claims were unrelated to one another.

It is common to plead that a defendant committed some 

act “intentionally, knowingly, or recklessly,” or 

simultaneously to bring different claims premised on distinct 

mental states. This widely accepted litigation strategy is 

accommodated by the clear standard pronounced by the 

Supreme Court and previously applied by our court, which 

focuses on whether the claims are premised on an “entirely 

distinct and separate” set of facts, not whether they are based 

on different “mental states.” The analysis in the nowwithdrawn opinion shows that had it applied the correct 

standard, it would have recognized that all of Dr. Ibrahim’s 

claims were based on the same set of facts—the placement 

of Dr. Ibrahim’s name on the government’s watchlists—

regardless of what “mental state” was required to prove each 

particular claim. Ibrahim III, 835 F.3d at 1063 (“[I]f the 

government negligently placed [Dr.] Ibrahim on its 

watchlists because it failed to properly fill out a form, then it 

could not at the same time have intentionally placed [Dr.] 

Ibrahim on the list based on constitutionally protected 

attributes [Dr.] Ibrahim possesses, and vice versa.”).

Allowing hindsight to creep in to fee awards also would 

put lawyers in an untenable ethical position. Res judicata 

bars claims that could have been raised in an earlier litigation 

that arise out of the same “transactional nucleus of facts.” 

Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 

714 (9th Cir. 2001) (internal quotation marks and citation 

omitted). Ethical obligations—or perhaps more likely, the 
56 IBRAHIM V. DHS

specter of malpractice liability—thus require a lawyer to 

bring all reasonably related, viable claims in a single 

action.26 But the three-judge panel’s “mutually exclusive” 

 26 Our sister circuits have recognized the difficult task facing 

lawyers navigating the complexities of civil rights litigation. The D.C. 

Circuit, for example, has emphasized that

[a] lawyer who wins full relief for her client on one of 

several related claims . . . is not apt to be criticized 

because the court failed to reach some of the grounds, 

or even ruled against the client on them. . . . After the 

fact, it is of course easier to identify which arguments 

were winners and which were losers and state 

forcefully how an attorney’s time could have been 

better spent. But litigation is not an exact science. In 

some cases, the lawyer’s flagship argument may not 

carry the day, while the court embraces a secondary 

argument the lawyer rated less favorably. That is 

precisely why lawyers raise alternative grounds—a 

practice which is explicitly sanctioned by our Rules of 

Civil Procedure.

Goos v. Nat’l Ass’n of Realtors, 68 F.3d 1380, 1386 (D.C. Cir. 1995);

see also id. at 1384–86.

The Seventh Circuit similarly has rejected the panel’s ex post 

approach:

For tactical reasons and out of caution lawyers often 

try to state their client’s claim in a number of different 

ways, some of which may fall by the wayside as the 

litigation proceeds. The lawyer has no right to 

advance a theory that is completely groundless or has 

no factual basis, but if he presents a congeries of 

theories each legally and factually plausible, he is not 

to be penalized just because some, or even all but one, 

are rejected, provided that the one or ones that succeed 

give him all that he reasonably could have asked for.
IBRAHIM V. DHS 57

rule raises the possibility that some fraction (perhaps a 

substantial one) of these reasonably related, ethically 

compelled claims, which a lawyer must research and litigate, 

will be excluded from a fee award.

Dr. Ibrahim’s lawyers may have violated 

their ethical duties and risked malpractice if 

they had failed to bring all claims that their 

client could present in good faith. See Model 

Rules of Prof’l Conduct r. 1.3 cmt. (Am. Bar 

Ass’n 2016) (“A lawyer should pursue a 

matter on behalf of a client despite 

opposition, obstruction or personal 

inconvenience to the lawyer, and take 

whatever lawful and ethical measures are 

required to vindicate a client’s cause or 

endeavor.”). Dr. Ibrahim and her lawyers 

faced an uphill battle. The government 

vigorously defended this case, and Dr. 

Ibrahim did not have access to meaningful 

discovery until a few months before trial, 

after years of litigation and two appeals—she 

was fighting blind against the Many-Faced 

 Lenard v. Argento, 808 F.2d 1242, 1245–46 (7th Cir. 1987). Other 

circuits are in accord. See, e.g., Jordan v. City of Cleveland, 464 F.3d 

584, 604 (6th Cir. 2006) (“[L]itigation is not an ‘exact science’: Lawyers 

cannot preordain which claims will carry the day and which will be 

treated less favorably.”); Robinson v. City of Edmond, 160 F.3d 1275, 

1283 (10th Cir. 1998) (“Litigants should be given the breathing room to 

raise alternative legal grounds without fear that merely raising an 

alternative theory will threaten the attorney’s subsequent 

compensation.”).
58 IBRAHIM V. DHS

Bureaucratic God.27 And as demonstrated by 

the complex and longstanding procedural 

history, it was not even clear that Dr. Ibrahim 

could advance the case beyond the dismissal 

stage.

Applying the correct “common course of conduct” test 

to Dr. Ibrahim’s claims for procedural and substantive due 

process, violations of her First Amendment and equal 

protection rights and the APA, we conclude that Dr. Ibrahim 

meets the first prong of Hensley. All of Dr. Ibrahim’s claims 

arose from her wrongful placement on the No Fly list, and 

are therefore related. Fees for each of these claims are thus 

recoverable. All of these claims derive from the 

government’s interest in Dr. Ibrahim’s activities, which led 

to her placement on the No Fly list, her placement on and off 

various other watchlists (which the district court deemed 

“Kafkaesque”), her attempts to learn why she was on the No 

Fly list, her attempts to get herself removed from the No Fly 

list, and the government’s intransigence in setting the record 

straight for almost a decade. As the district court found, this 

treatment had a “palpable impact, leading to the humiliation, 

cuffing, and incarceration of an innocent and incapacitated 

air traveler.” Dr. Ibrahim’s “litany of troubles” flow directly 

from her erroneous placement on the No Fly list, as do all of 

the claims that went to trial. None of the claims was distinct 

or separable from another, and each claim sought the same 

relief Dr. Ibrahim ultimately obtained.

 27 See Game of Thrones: The Red Woman (Home Box Office, Inc. 

broadcast Apr. 24, 2016).
IBRAHIM V. DHS 59

3. Level of Success

Dr. Ibrahim also satisfied Hensley’s second prong 

because she “achieved a level of success that makes the 

hours reasonably expended a satisfactory basis for making a 

fee award.” Sorenson, 239 F.3d at 1147 (internal 

punctuation omitted) (quoting Hensley, 461 U.S. at 434). 

The district court found that Dr. Ibrahim had only “limited” 

success. We disagree.

The achievement of Dr. Ibrahim and her attorneys in 

successfully challenging her No Fly list placement and 

forcing the government to fix its error was not just 

“excellent,” but extraordinary. Hensley, 461 U.S. at 435. 

Although this is not a class action, and thus we assess Dr. 

Ibrahim’s individual success, the pathbreaking nature of her 

lawsuit underscores her achievement. Dr. Ibrahim was the 

first person ever to force the government to admit a terrorist 

watchlisting mistake; to obtain significant discovery 

regarding how the federal watchlisting system works; to 

proceed to trial regarding a watchlisting mistake; to force the 

government to trace and correct all erroneous records in its 

customer watchlists and databases; to require the 

government to inform a watchlisted individual of her TSDB 

status; and to admit that it has secret exceptions to the 

watchlisting reasonable suspicion standard. Dr. Ibrahim, in 

her first appeal to our court, established that district courts 

have jurisdiction over challenges to placement on terrorist 

watchlists, including the No Fly list. Ibrahim I, 538 F.3d at

1254–57. In her second appeal, she established that even 

aliens who voluntarily depart from the U.S. have standing to 

bring constitutional claims when they have had a significant 

voluntary connection with the U.S. Ibrahim II, 669 F.3d at

993–94. Moreover, on her journey, Dr. Ibrahim established 

important principles of law, benefiting future individuals 
60 IBRAHIM V. DHS

wrongfully placed on government watchlists. Previously, 

most such challenges failed at the pleading stage. See, e.g.,

Shearson v. Holder, 725 F.3d 588 (6th Cir. 2013); Rahman 

v. Chertoff, No. 05 C 3761, 2010 WL 1335434 (N.D. Ill. 

Mar. 31, 2010); Scherfen v. U.S. Dep’t of Homeland Sec., 

No. 3:CV-08-1554, 2010 WL 456784 (M.D. Penn. Feb. 2, 

2010); Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119 

(W.D. Wash. 2005).

Dr. Ibrahim’s victory affected more than just her case—

it affected the way all individuals can contest their placement 

on these watchlists.

28 The EAJA

rests on the premise that a party who chooses 

to litigate an issue against the Government is 

not only representing his or her own vested 

interest but is also refining and formulating 

public policy. An adjudication or civil action 

provides a concrete, adversarial test of 

Government regulation and thereby insures 

the legitimacy and fairness of the law.

Escobar Ruiz v. I.N.S., 813 F.2d 283, 288 (9th Cir. 1987) 

(quoting H.R. Rep. No. 1418, at 10 (1980)). Dr. Ibrahim 

refined federal watchlisting policy by creating a roadmap for 

other similarly situated plaintiffs to seek judicial redress for 

alleged wrongful placement on government watchlists.

29

 28 The government has since changed its policy regarding contesting 

placement on the No Fly list. It now allows certain categories of 

individuals to challenge their No Fly list status.

29 For example, in Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or. 

2014), where U.S. citizens and lawful permanent residents challenged

their allegedly wrongful placement on the No Fly list, the district court 
IBRAHIM V. DHS 61

The significance of Dr. Ibrahim’s roadmap cannot be 

overstated. Any person could have the misfortune of being 

mistakenly placed on a government watchlist,30 and the 

consequences are severe.31 Placement on the No Fly list, if 

 held at the summary judgment stage that the DHS Traveler Redress 

Inquiry Program process “falls far short of satisfying the requirements of 

due process,” and that “the absence of any meaningful procedures to 

afford Plaintiffs the opportunity to contest their placement on the No-Fly 

List violates Plaintiffs’ rights to procedural due process.” Id. at 1161. In 

evaluating the procedural due process factors from Mathews v. Eldridge, 

424 U.S. 319 (1976), the Latif court cited to Dr. Ibrahim’s case, the only 

available case involving a due process challenge to watchlisting 

procedures, to find that the plaintiffs had been deprived of their liberty 

interests in travel, and that the DHS redress process contains a high risk 

of erroneous deprivation of constitutionally-protected interests. 28 F. 

Supp. 3d at 1148, 1152–53. Today, relief from No Fly list errors is 

widely recognized as available. See, e.g., Murtaza Hussain, How a 

Young American Escaped the No Fly List, Intercept (Jan. 21, 2016, 

4:30 AM), https://theintercept.com/2016/01/21/how-a-young-americanescaped-the-No-Fly-list/.

30 As of 2014, it was reported that there are 680,000 individuals 

listed in the TSDB and 47,000 individuals listed on the No Fly list, and 

that these lists are littered with errors. See Ibrahim II, 669 F.3d at 990 

(noting that there are significant numbers of erroneous placements on the 

federal watchlists).

31 Placement on the No Fly list can also affect an individual’s visa 

eligibility, lead to arrest and temporary incarceration, and be considered 

in the probable cause inquiry of a bail determination. See United States 

v. Duque, No. CR-09-265-D, 2009 WL 3698127, at *5 (W.D. Okla. Nov. 

2, 2009) (describing presence on the VGTOF as part of “officers’ 

collective knowledge” reasonably used to determine probable cause for 

an arrest). What is more, “[the U.S. government] shares the TSDB 

[watchlisting database] with 22 foreign governments,” so there are 

doubtless international repercussions even if a listed person never tries 

to enter the United States, fly over U.S. airspace, or use a U.S. carrier. 

Ibrahim II, 669 F.3d at 993.
62 IBRAHIM V. DHS

left unchanged, prevents an individual from ever boarding

an airplane that touches the vast expanse of U.S. airspace. 

Travel by air has become a normal part of our lives, whether 

for work, vacations, funerals, weddings, or to visit friends 

and family. In 2017 alone, there were 728 million airline 

passengers in the United States.32 It is debilitating to lose 

the option to fly to one’s intended destination. Today, those 

misplaced on the No Fly list can contest that placement, and, 

if misplaced, regain their right to flight. See Saenz v. Roe, 

526 U.S. 489, 498 (1999) (“[T]he ‘constitutional right to 

travel from one State to another’ is firmly embedded in our 

jurisprudence.” (quoting United States v. Guest, 383 U.S. 

745, 757 (1966))).

A full award of attorneys’ fees here is consistent with the 

EAJA’s goal of creating a level playing field in cases in 

which there is an imbalance of power and resources. “The 

EAJA grew out of a concern for the unequal position of the 

individual vis à vis an insensitive and ever-expanding 

governmental bureaucracy. The House Report expresses 

concern about the fact that . . . the government with its 

greater resources and expertise can in effect coerce 

compliance with its position.” Escobar Ruiz, 813 F.2d at

288 (internal quotation marks and citation omitted). Dr. 

Ibrahim—a professor and person of ordinary means—did 

 Dr. Ibrahim suffered these consequences. She was deprived of her 

right to travel, Kent v. Dulles, 357 U.S. 116, 125 (1958): she was unable 

to return to Stanford to pursue her degree; forced to leave the United 

States permanently, without warning, after living here for thirteen years; 

and not allowed to return to testify at her own trial. She was arrested, 

Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004), and humiliated, Paul v. 

Davis, 424 U.S. 693, 701, 711 (1976).

32 See Airline Activity: National Summary (U.S. Flights), Bureau 

Transp. Stats., https://www.transtats.bts.gov/ (last visited July 26, 2018).
IBRAHIM V. DHS 63

not have the resources to pay an attorney to pursue her 

claims, which ultimately cost more than $3.6 million dollars 

to litigate. And the small seventeen-lawyer law firm that 

represented her, McManis Faulkner, had similarly limited 

resources, but, when others refused, they agreed to take on 

her case, uncertain whether they would ever be 

compensated. On the other side of the table was the 

government and its virtually unlimited resources. The 

government had a team of twenty-six lawyers—more 

lawyers than McManis Faulkner employed—and spent at 

least 13,400 hours—in other words, 558 days of one person 

working 24 hours a day—vigorously defending this 

litigation.

Accordingly, we find that Dr. Ibrahim achieved excellent 

results and is therefore entitled to reasonable fees consistent 

with that outcome.

C. Bad Faith

Generally, attorneys’ fees are capped under the EAJA at 

$125 per hour. 28 U.S.C. § 2412(d)(2)(A)(ii). The EAJA 

provides, however, that “[t]he United States shall be liable 

for such fees and expenses to the same extent that any other 

party would be liable under the common law.” 28 U.S.C. 

§ 2412(b). Thus, under the common law a court may assess 

attorneys’ fees against the government if it has “acted in bad 

faith, vexatiously, wantonly, or for oppressive reasons.” 

Rodriguez v. United States, 542 F.3d 704, 709 (9th Cir. 

2008) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45–

46 (1991)). “[W]e hold the government to the same standard 

of good faith that we demand of all non-governmental 

parties.” Id. The purpose of such an award is to “deter 

abusive litigation in the future, thereby avoiding harassment 

and protecting the integrity of the judicial process.” 

Copeland v. Martinez, 603 F.2d 981, 984 (D.C. Cir. 1979). 
64 IBRAHIM V. DHS

“The district court may award attorney fees at market rates 

for the entire course of litigation, including time spent 

preparing, defending, and appealing the two awards of 

attorney fees, if it finds that the fees incurred during the 

various phases of litigation are in some way traceable to the 

[government’s] bad faith.” Brown v. Sullivan, 916 F.2d 492, 

497 (9th Cir. 1990). And in evaluating whether the 

government acted in bad faith, we may examine the 

government’s actions that precipitated the litigation, as well 

as the litigation itself. Rawlings v. Heckler, 725 F.2d 1192, 

1195–96 (9th Cir. 1984); see also Hall v. Cole, 412 U.S. 1, 

15 (1973) (concluding that “the dilatory action of the union 

and its officers” in expelling an individual from the union 

following his resolutions unsuccessfully condemning union 

management’s alleged undemocratic and short sighted 

policies constituted bad faith (internal quotation marks and 

citation omitted)); Dogherra v. Safeway Stores, Inc., 

679 F.2d 1293, 1298 (9th Cir. 1982) (concluding that an 

employer would have acted in bad faith if it pursued a 

defense of an action based on a lie).

“A finding of bad faith is warranted where an attorney 

knowingly or recklessly raises a frivolous argument, or 

argues a meritorious claim for the purpose of harassing an 

opponent.” Primus Auto. Fin. Servs., Inc. v. Batarse, 

115 F.3d 644, 649 (9th Cir. 1997) (internal quotation marks 

and citation omitted). “Mere recklessness does not alone 

constitute bad faith; rather, an award of attorney’s fees is 

justified when reckless conduct is combined with an 

additional factor such as frivolousness, harassment, or an 

improper purpose.” Rodriguez, 542 F.3d at 709 (internal 

quotation marks omitted) (quoting Fink v. Gomez, 239 F.3d 

989, 993–94 (9th Cir. 2001)). It is also shown when litigants 

disregard the judicial process. Brown, 916 F.2d at 496 

(concluding that the “cumulative effect” of the Appeals 
IBRAHIM V. DHS 65

Council’s review of a claim for social security benefits, 

including the “failure to review a tape of an ALJ’s hearing, 

a statutory duty, and other acts that caused delay and 

necessitated the filing and hearing of additional motions, 

viz., the Secretary’s delay in producing documents and in 

transcribing the tape” constituted bad faith); see also Octane 

Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 

1749, 1758 (2014) (allowing fee-shifting for willful 

disobedience of a court’s order); Beaudry Motor Co. v. Abko 

Props., Inc., 780 F.2d 751, 756 (9th Cir. 1986) (bringing a 

case barred by the statute of limitations); Toombs v. Leone, 

777 F.2d 465, 471–72 (9th Cir. 1985) (deliberately failing to 

comply with local rules regarding exchange of exhibits); 

Int’l Union of Petroleum & Indus. Workers v. W. Indus.

Maint., Inc., 707 F.2d 425, 428–29 (9th Cir. 1983) (refusing 

to abide by arbitrator’s award).

Though the district court cited some of this relevant case

law, including Rodriguez, Chambers, and Brown, it 

erroneously applied a piecemeal approach to its bad faith 

determination in conflict with the cases it cited. See 

Rodriguez, 542 F.3d at 712. We have long established that 

to make a bad faith determination, we must review the 

totality of the government’s conduct. See Brown, 916 F.2d 

at 496; see also Rawlings, 725 F.2d at 1196. However, “it is 

unnecessary to find that every aspect of a case is litigated by 

a party in bad faith in order to find bad faith by that party.” 

Rodriguez, 542 F.3d at 712.

The district court clearly erred by failing to consider the 

totality of the government’s conduct, particularly its 

comportment after discovering Agent Kelley’s error. See 

Mendenhall v. Nat’l Transp. Safety Bd., 92 F.3d 871 (9th Cir. 
66 IBRAHIM V. DHS

1996).33 In Mendenhall, we held that a government agency, 

there the FAA, acted in bad faith, thereby allowing the 

prevailing party, Mendenhall, to recover fees at a reasonable 

market rate. We held that “[t]he moment the FAA 

acknowledged” that its complaint against her was baseless, 

“the agency was no longer justified in pursuing its action.” 

Id. at 877. “The agency’s continuation of an action it knew 

to be baseless . . . is a prime example of bad faith.” Id. 

(internal quotation marks omitted) (quoting Brown, 916 F.2d 

at 495–96).

The only post-litigation agency conduct that the district 

court considered was whether the government obstructed Dr. 

Ibrahim or her daughter, Rafeah, from appearing at trial. 

The court unreasonably concluded, at least with respect to 

Rafeah, that there was no evidence that the government did 

so. That conclusion by the district court is “without support 

in inferences that may be drawn from the facts in the record” 

and is thus clearly erroneous. Crittenden v. Chappell, 

804 F.3d 998, 1012 (9th Cir. 2015). Dr. Ibrahim’s daughter, 

a U.S. citizen with a U.S. passport, was flagged by the 

 33 The district court made no findings as to whether the agencies 

acted in bad faith before litigation, and we do not have a record basis 

upon which to consider this argument. As the district court speculated, 

however, the government’s initial interest in Dr. Ibrahim may have 

rested on shaky constitutional grounds because it may have been 

motivated by racial or religious animus. Dr. Ibrahim alleged that, at the 

time Agent Kelley first investigated Dr. Ibrahim for potential 

watchlisting placement, the government had a heightened interest in 

foreign students like her who were in the United States from Muslim 

countries on U.S. student visas. Stanford University had specifically 

contacted these students, warning them of the government’s potential 

interest. However, because the district court did not reach this issue 

despite having more familiarity with the extensive record, we cannot 

conclude that the government’s initial interest in Dr. Ibrahim was in bad 

faith.
IBRAHIM V. DHS 67

National Targeting Center (NTC) as potentially inadmissible 

to the United States. NTC determined that she had been 

listed in the TSDB database by other government entities as 

an individual about whom those agencies possessed 

“substantive ‘derogatory’ information” that “may be 

relevant to an admissibility determination under the 

Immigration and Nationality Act.” But, as a U.S. citizen, Dr. 

Ibrahim’s daughter clearly was not subject to the INA.

Although Dr. Ibrahim’s daughter carried a U.S. passport 

and U.S. Customs and Border Protection recognized that she 

appeared to be a U.S. citizen, NTC requested that Philippine 

Airlines perform additional screening of her in the following 

e-mail:

[Subject line:] POSSIBLE NO BOARD 

REQUESTPNR WNDYJS

[Body:] NOTICE TO AIR CARRIER The 

[DHS and U.S. Customs and Border 

Protection] recommends the airline to contact 

[the carrier liaison group] when the following 

passenger shows up to check in . . . .

After Philippine Airlines received this notice, Rafeah was 

not permitted to board her flight, causing her to miss her 

mother’s trial, where she had been listed as a witness. The 

government did not update the TSDB to reflect that Dr. 

Ibrahim’s daughter was a U.S. citizen until after it had 

purportedly investigated the situation.

The district court also disregarded the government’s 

response to Agent Kelley’s error once the error was 

discovered. On remand, the district court should take into 

account in its analysis of bad faith the government’s conduct 

together with the consequences Dr. Ibrahim suffered as a 
68 IBRAHIM V. DHS

result. For example, the district court failed to consider the 

February 2006 order to remove Dr. Ibrahim from all 

watchlist databases because she had “no nexus to terrorism.” 

Despite this order, the government continued to place Dr. 

Ibrahim on and off federal watchlists, providing no 

reasonable explanation for Dr. Ibrahim’s never-ending 

transitions in watchlist status. Further, the only justification 

for her continued watchlist placement is claimed to be a state 

secret. This assertion begs the question: Why was Dr. 

Ibrahim added to any watchlist once the government 

determined she was not a threat? Moreover, was there any 

justification for her seemingly random addition to and 

removal from watchlists? The district court should also 

consider the government’s failure to remedy its own error 

until being ordered to do so and its failure to inform Agent 

Kelley of his mistake for eight years.34

The district court also wrongly rejected as a basis for bad 

faith the government’s numerous requests for dismissal on 

standing grounds post-Ibrahim II, where we determined 

unequivocally that Dr. Ibrahim had Article III standing even 

though she voluntarily left the United States. The 

government knowingly pursued baseless standing arguments 

in its third motion to dismiss, its motion for summary 

judgment, statements during trial, and post-trial proposed 

findings of fact and conclusions of law. The district court 

found that the government’s position was “unreasonable,” 

particularly after it “continue[d] to seek dismissal based on 

 34 Even after Agent Kelley learned of his mistake, Agent Kelley 

never reviewed his old files to see if he had accidentally nominated 

others to the No Fly list in the hope it was a one-time mistake. But Agent 

Kelley’s hope was not grounded in reality. If Agent Kelley nominated 

Dr. Ibrahim because he misread the form, this may well not have been a 

one-time event—he likely would have made the same mistake other 

times he used the same form.
IBRAHIM V. DHS 69

lack of standing in the face of our court of appeal’s 

decision,” but it did not account for this unreasonableness in 

its bad faith determination. See Ibrahim II, 669 F.3d at 997. 

This was contrary to our longstanding precedent that when 

an attorney knowingly or recklessly raises frivolous 

arguments, a finding of bad faith is warranted. Fink, 

239 F.3d at 993–94; see also Optyl Eyewear Fashion Int’l 

Corp. v. Style Cos., 760 F.2d 1045, 1052 (9th Cir. 1985). As 

the district court acknowledged, “the government should 

have sought review by the United States Supreme Court,” 

rather than to repeatedly assert an argument for dismissal it 

knew to be baseless.

Although the district court concluded that “the 

government was wrong to assure all that it would not rely on 

state-secrets evidence and then reverse course and seek 

dismissal at summary judgment,” it incorrectly found that 

the error was not knowingly or recklessly made. The 

government falsely represented to both the district court and 

to Dr. Ibrahim’s counsel—orally in court and in written 

filings—that it would not rely on evidence withheld on the 

basis of a privilege to “prevail in this action.”35 And yet, 

after these representations, the government raised the very 

 35 The government explicitly stated in a response to a court order 

asking the government to confirm its position on this very question:

Defendants affirm that they will not rely on any 

information they have withheld on grounds of 

privilege from Plaintiff in response to a discovery 

request in this case. Defendants are mindful of the 

Court’s December 20, 2012 ruling (Dkt. [No.] 399) 

that the Government may not affirmatively seek to 

prevail in this action based upon information that has 

been withheld on grounds of privilege, and have acted 

in a manner consistent with that ruling in both the 

assertion of privilege and summary judgment briefing.
70 IBRAHIM V. DHS

argument it had promised to forego. This is precisely the 

type of “abusive litigation” disavowed in the EAJA, which 

is focused on “protecting the integrity of the judicial 

process.” Copeland, 603 F.2d at 984 (concluding that the 

government was entitled to bad faith fees where the plaintiff 

brought a frivolous suit under Title VII of the Civil Rights 

Act of 1964 because the purpose of a fee award under the 

bad faith exception includes “protecting the integrity of the 

judicial process”).

The district court also clearly erred in concluding the 

government’s privilege assertions were made in good faith 

by considering only the merits of the privilege arguments 

themselves (“some were upheld, some were overruled”). 

The district court disregarded the government’s stubborn 

refusal to produce discovery even after the district court 

ordered it produced. But “willful disobedience of a court 

order” supports a bad faith finding. Octane Fitness, LLC, 

134 S. Ct. at 1758 (citation omitted); see also Hutto v. 

Finney, 437 U.S. 678, 689 n.14 (1978) (noting that a court 

can “award attorney’s fees against a party who shows bad 

faith by delaying or disrupting the litigation or by hampering 

enforcement of a court order”). Here, the government 

refused to produce evidence designated “sensitive security 

information” (SSI), even after Dr. Ibrahim’s attorneys 

obtained the requisite security clearance and the court 

ordered the government to produce discovery. Contrary to 

its April 2014 bad faith finding, the district court itself, in a 

December 20, 2012 order, admonished the government for 

its “persistent and stubborn refusal to follow the statute” that 
IBRAHIM V. DHS 71

required the government to produce this information in these 

circumstances.36

The district court’s 2012 reprimand had little effect on 

the government’s conduct. After this order, the government 

continued to drag its feet and refused to produce any 

privileged information—which Dr. Ibrahim’s attorneys were 

cleared to review—because it wanted to renegotiate an 

already-in-place protective order. The district court, noting 

its dissatisfaction with the government’s handling of this 

litigation in 2013, emphasized that the government had 

“once again miss[ed] a deadline to produce materials in this 

long-pending action.”

The government also refused to comply with the district 

court’s order to produce Dr. Ibrahim’s current watchlist 

status until it was compelled to do so. Dr. Ibrahim should 

not have been required to pursue a motion to compel to 

require the government to produce this information, 

especially when the government’s justifications for refusing 

to produce it were baseless. The government first argued 

that Dr. Ibrahim did not have standing to assert a right to 

learn the status of her No Fly list placement—a meritless 

reassertion of a settled issue. The government alternatively 

argued that her historical watchlist status was irrelevant to 

this case—a plainly frivolous contention given that Dr. 

 36 Dr. Ibrahim also argues that the government acted in bad faith by 

giving the district court secret evidence and secret case law. While the 

district court ultimately held that the government was not justified in 

these ex parte communications, it is not clear that such communications 

were so clearly precluded by precedent that the ex parte communications 

were outside the bounds of acceptable conduct.
72 IBRAHIM V. DHS

Ibrahim’s watchlist status is at the heart of this dispute. 

These actions, too, support a bad faith finding.

On remand, when analyzing the government’s litigation 

conduct through a totality of the circumstances lens, the 

district court must also consider other relevant conduct, 

including the government’s abuse of the discovery 

process;37 interference with the public’s right of access to 

trial by making at least ten motions to close the courtroom, 

see Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 

1135 (9th Cir. 2003); accord Globe Newspaper Co. v. 

Superior Court, 457 U.S. 596, 606–07 (1982);38 and misuse 

of a summary judgment hearing to discuss tangential issues 

unrelated to the merits of the summary judgment motion.

Finally, the district court erred in failing to consider 

whether the government’s position as a whole was in good 

faith. Though the government may have had a legitimate 

basis to defend this litigation initially, whether the 

government’s defense of this litigation was ever in good 

faith is a different question from whether it was always in 

good faith. Once the government discovers that its litigation 

position is baseless, it may not continue to defend it. 

Mendenhall, 92 F.3d at 877. On remand, the district court 

 37 For example, the government also made depositions exceedingly 

difficult by lodging over 200 objections and instructions not to answer 

to questions.

38 “[H]istorically both civil and criminal trials have been 

presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 

555, 580 n.17 (1980) (plurality opinion); see also id. at 596 (Brennan, J., 

concurring in judgment) (emphasizing value of open civil proceedings); 

id. at 599 (Stewart, J., concurring in judgment) (remarking that the First 

Amendment provides a right of access to civil and criminal trials).
IBRAHIM V. DHS 73

must consider whether the government had a good faith basis 

to defend its No Fly list error as the litigation evolved.

In sum, the district court’s ruling that the government did 

not act in bad faith was in error because it was incomplete. 

The district court focused primarily upon Agent Kelley’s 

“unknowing” placement of Dr. Ibrahim’s name on the No 

Fly list, which it deemed “the original sin,” rather than 

considering the “totality” of the government’s conduct, 

“including conduct ‘prelitigation and during trial.’”

Rodriguez, 542 F.3d at 712 (emphasis removed) (citations 

omitted); see also Rawlings, 725 F.2d at 1196 (opining that 

when evaluating bad faith we must consider the “totality of 

the circumstances”). And this conduct should have included 

both an analysis of the government agencies’ and its legal 

representatives’ conduct. Dr. Ibrahim should not have had 

to endure over a decade of contentious litigation, two trips to 

the court of appeals, extensive discovery, over 800 docket 

entries amounting to many thousands of pages of record, and 

a weeklong trial the government precluded her (and her 

U.S.-citizen daughter) from attending, only to come full 

circle to the government’s concession that she never 

belonged on the No Fly list at all—that she is not and never 

was a terrorist or threat to airline passenger or civil aviation 

security. It should not have taken a court order to require the 

government to “cleans[e] and/or correct[] . . . the mistaken 

2004 derogatory designation” of Dr. Ibrahim, which had 

spread like an insidious virus through numerous government 

watchlists.

V.

The district court’s piecemeal award of attorneys’ fees in 

this case runs afoul of the Supreme Court’s admonition that 

“[a] request for attorney’s fees should not result in a second 

major litigation.” Hensley, 461 U.S. at 437. In this request 
74 IBRAHIM V. DHS

for attorneys’ fees alone, three courts, both a three-judge 

panel of our court and an en banc panel, fifteen judges, and 

one special master have had to consider the merits of this 

claim while the attorneys’ fees and costs continue to mount. 

The district court and original panel’s substantive 

determination of issues are precisely the type of “second 

major litigation” that the Hensley Court directed us to avoid.

That is not to say that all of the special master’s findings 

and recommended fee reductions accepted by the district 

court were incorrect. As the Supreme Court noted in 

Hensley, consideration of the twelve factors laid out in 

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 

717–19 (5th Cir. 1974), abrogated on different grounds by

Blanchard v. Bergeron, 489 U.S. 87 (1989),

39 was entirely 

appropriate. 461 U.S. at 429–30. For example, the special 

master did not err in considering whether there was 

duplicative or block billing. However, when revisiting this 

case, the fee reductions should not be so pervasive that they 

completely eliminate the reasonable fees to which Dr. 

Ibrahim’s attorneys are entitled.

When the district court recalculates these fees, the 

calculation should acknowledge that Dr. Ibrahim and her 

lawyers, facing overwhelming odds, won a groundbreaking 

 39 The Johnson factors are: (1) the time and labor required; (2) the 

novelty and difficulty of the questions; (3) the skill requisite to perform 

the legal service properly; (4) the preclusion of other employment; 

(5) the customary fee in the community for similar work; (6) the fixed or 

contingent nature of the fee; (7) time limitations imposed by the client or 

the circumstances; (8) the amount involved and the results obtained; 

(9) the experience, reputation, and ability of the attorneys; (10) the 

“undesirability” of the case; (11) the nature and length of the professional 

relationship with the client; and (12) awards in similar cases. Johnson, 

488 F.2d at 717–19.
IBRAHIM V. DHS 75

victory, and that they are entitled to the fees they’ve earned

and the vast majority of fees they requested. Cf. Moreno v. 

City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008)

(“The district court’s inquiry must be limited to determining 

whether the fees requested by this particular legal team are 

justified for the particular work performed and the results 

achieved in this particular case.”).

We therefore REVERSE, VACATE the award of 

attorneys’ fees, and REMAND to allow the district court to 

make a bad faith determination under the correct legal 

standard in the first instance, and to re-determine the fee 

award in accordance with this opinion.40

 40 We do not reach each of the objections to the special master’s 

recommendations, as the fee award is vacated, and many of the 

objections may be mooted as a result of our opinion, which will require 

a substantial redetermination of the fee award, as well as commensurate 

costs.
76 IBRAHIM V. DHS

APPENDIX A

Glossary of Acronyms

APA Administrative Procedure Act

CLASS Consular Lookout and Support System

DHS Department of Homeland Security

EAJA Equal Access to Justice Act

FAA Federal Aviation Administration

FBI Federal Bureau of Investigation

HSPD-6 Homeland Security Presidential Directive 6

IBIS Interagency Border Inspection System

INA Immigration and Nationality Act

KSTF Known and Suspected Terrorist File

NCIC National Crime Information Center

NCTC National Counterterrorism Center

NTC National Targeting Center

PIVF Passenger Identity Verification Form

SFO San Francisco International Airport

SSI Sensitive Security Information

TACTICS Tipoff Australia Counterterrorism Information 

Control System

TIDE Terrorist Identities Datamart Environment

TRIP Travel Redress Inquiry Program

TSA Transportation Security Administration

TSC Terrorist Screening Center

TSDB Terrorist Screening Database
IBRAHIM V. DHS 77

TUSCAN Tipoff United States-Canada

VGTO Violent Gang and Terrorist Organization

VGTOF Violent Gang and Terrorist Organization File
78 IBRAHIM V. DHS

CALLAHAN, Circuit Judge, joined by N.R. SMITH and 

NGUYEN, Circuit Judges, concurring in part and dissenting 

in part:

I agree with the majority that Dr. Ibrahim is the 

prevailing party in this case and that the test for substantial 

justification is an inclusive one: whether the government’s 

position as a whole has a reasonable basis in fact and law. I 

further agree that Dr. Ibrahim’s equal protection and First 

Amendment claims are sufficiently related to her other 

claims such that the district court’s failure to reach those 

issues does not justify the district court’s curtailment of 

attorneys’ fees. But the majority exceeds our role as an 

appellate court by determining in the first instance that the 

government’s position was not substantially justified. 

Supreme Court precedent requires that we allow the district 

court to make that determination on remand. See Pierce v. 

Underwood, 487 U.S. 552, 560 (1988). I also dissent from 

the majority’s setting aside of the district court’s finding that 

the defendants did not proceed in bad faith. Applying the 

applicable standard of review, see Rodriguez v. United 

States, 542 F.3d 704, 709 (9th Cir. 2008), Dr. Ibrahim has 

not shown that the district court committed clear error. 

Accordingly, I would affirm the district court’s limitation of 

Dr. Ibrahim’s attorneys’ fees to the statutory rate of $125 per 

hour set by Equal Access to Justice Act (EAJA), 28 U.S.C. 

§ 2412.

I

Although I agree that substantial justification requires a

single-finding, the majority errs in proceeding to make this 

factual determination. In Pierce, the Supreme Court held 

that the language in 28 U.S.C. § 2412(d)(1)(A)—that 

attorneys’ fees shall be awarded “unless the court finds that 

the position of the United States was substantially 
IBRAHIM V. DHS 79

justified”—contemplates that “the determination is for the 

district court to make and suggests some deference to the 

district court.” 487 U.S. at 559. The Court explained why 

the district court is in a better position than an appellate court 

to make this determination:

To begin with, some of the elements that bear 

upon whether the Government’s position 

“was substantially justified” may be known 

only to the district court. Not infrequently, 

the question will turn upon not merely what 

was the law, but what was the evidence 

regarding the facts. By reason of settlement 

conferences and other pretrial activities, the 

district court may have insights not conveyed 

by the record, into such matters as whether 

particular evidence was worthy of being 

relied upon, or whether critical facts could 

easily have been verified by the Government. 

Moreover, even where the district judge’s full 

knowledge of the factual setting can be 

acquired by the appellate court, that 

acquisition will often come at unusual 

expense, requiring the court to undertake the 

unaccustomed task of reviewing the entire 

record, not just to determine whether there 

existed the usual minimum support for the 

merits determination made by the factfinder 

below, but to determine whether urging of the 

opposite merits determination was 

substantially justified.

Id. at 560 (emphasis in original). The EAJA is materially 

indistinguishable from the statute at issue in Pierce, and our 

case presents just the type of situation alluded to by the 
80 IBRAHIM V. DHS

Supreme Court. The district court has managed this 

litigation for twelve years. It is uniquely positioned to 

determine based on the totality of the circumstances whether 

the government’s position was substantially justified.

Despite its ultimate factual conclusion that “neither the 

agencies’ conduct nor the government’s litigation position 

was substantially justified” (Maj. Opn. at 46), the majority’s 

own description of the litigation shows why the district court 

should decide the issue in the first instance. The majority 

“ascribe[s] no nefarious motivations to the government” 

(Maj. Opn. at 43 n.19) and declines to find that “the 

government’s defense of this litigation was unreasonable at 

all points of the litigation.” Maj. Opn. at 45 n.20. Later in 

its opinion, the majority notes that “[t]hough the government 

may have had a legitimate basis to defend this litigation 

initially, whether the government’s defense of this litigation 

was ever in good faith is a different question from whether 

it was always in good faith.” Maj. Opn. at 72. The 

majority’s recognition of the complexities of this litigation 

illustrates precisely why the issue should be decided in the 

first instance by the district court.

As the Supreme Court directed in Pierce, our iteration of 

the single-finding requirement compels a remand to the 

district court to make that finding in the first place. See 

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 

(1995) (“Because our decision today alters the playing field 

in some important respects, we think it best to remand the 

case to the lower courts for further consideration in light of 

the principles we have announced.”). The government 

would then have the opportunity to explain its reasons for its 

positions and offer evidence in support of its positions, and, 

of course, Dr. Ibrahim would be entitled to respond to the 

government’s arguments and evidence. See Fisher v. Univ. 
IBRAHIM V. DHS 81

of Texas at Austin, 570 U.S. 297, 314 (2013) (noting that 

“fairness to the litigants and the courts that heard the case 

requires that it be remanded so that the admissions process 

can be considered and judged under a correct analysis”). 

The district court would then make its independent 

determination, which we could then review should either 

side take exception. We are not a fact-finding court, and our 

feelings concerning the reasonableness of the government’s 

overall litigation strategy do not justify our expropriation of 

the district court’s responsibility to make such a 

determination in the first instance.1

II

Although the majority correctly notes that a finding of 

bad faith permits a market-rate recovery of attorneys’ fees, 

in reversing the district court’s finding of no bad faith, the 

majority fails to apply, let alone acknowledge, the proper 

standard of review. “We review a district court’s finding 

regarding a party’s bad faith for clear error.” Rodriguez, 

542 F.3d at 709. “A finding is clearly erroneous if it is 

(1) illogical, (2) implausible, or (3) without support in 

inferences that may be drawn from the facts in the record.” 

Crittenden v. Chappell, 804 F.3d 998, 1012 (9th Cir. 2015) 

(internal quotation marks omitted) (quoting United States v. 

Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)). 

The Supreme Court has cautioned that pursuant to Federal 

Rule of Civil Procedure 52, “[f]indings of fact shall not be 

set aside unless clearly erroneous, and due regard shall be 

 1 See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 

(1985) (“The reviewing court oversteps the bounds of its duty under 

Rule 52(a) if it undertakes to duplicate the role of the lower court.”); see 

also S.E.C. v. Rogers, 790 F.2d 1450, 1458 (9th Cir. 1986) (noting that 

“as a court of limited review” the Ninth Circuit “must abide by the 

clearly erroneous rule when reviewing a district court’s findings.”).
82 IBRAHIM V. DHS

given to the opportunity of the trial court to judge the 

credibility of the witnesses.” Anderson, 470 U.S. at 573. 

The Supreme Court has counseled:

If the district court’s account of the evidence 

is plausible in light of the record viewed in its 

entirety, the court of appeals may not reverse 

it even though convinced that had it been 

sitting as the trier of fact, it would have 

weighed the evidence differently. Where 

there are two permissible views of the 

evidence, the factfinder’s choice between 

them cannot be clearly erroneous.

Id. at 573–74.

The majority turns the standard of review on its head by 

analyzing and emphasizing the pieces of evidence that it 

concludes “support a bad faith finding.” Maj. Opn. at 71–

72; see generally Maj. Opn. at 65–75. But to reverse for 

clear error, we should consider whether the district court’s 

finding was plausible and not simply identify evidence that 

arguably supports a conclusion contrary to the district 

court’s determination.

None of the arguments proffered by Dr. Ibrahim support 

a finding of clear error. She first argues that there is bad faith 

because she was wrongly placed on the watchlist, the 

government refused to acknowledge this fact, and the 

government continued to oppose her even after it knew its 

conduct was wrong. But this argument fails to acknowledge 

the evolution of the law—which has been prompted, at least 

in part, by this litigation. We now know that Dr. Ibrahim 

was placed on the watchlist by the mistake of a single federal 

employee. Moreover, at the time Dr. Ibrahim was placed on 

the government’s watchlist, there was no uniform standard. 
IBRAHIM V. DHS 83

Also, as the three-judge panel observed, “[p]rior to this suit 

no court had held a foreign national such as Ibrahim 

possessed any right to challenge their placement—mistaken 

or not—on the government’s terrorism watchlists.” Ibrahim 

v. U.S. Dep’t. of Homeland Sec., 835 F.3d 1048, 1058 (9th 

Cir. 2016) (Ibrahim III), reh’g en banc granted, 878 F.3d 

703 (9th Cir. 2017). Thus, it was not necessarily bad faith 

for the government to assert that Dr. Ibrahim did not possess 

such a right. Id. Furthermore, it appears that the government 

removed Dr. Ibrahim from the No-Fly List more than a year 

prior to Dr. Ibrahim filing this action in 2016. Id.

Second, Dr. Ibrahim asserts that the government’s 

raising of its standing defense after Ibrahim v. Dep’t. of 

Homeland Security, 669 F.3d 983 (9th Cir. 2012) (Ibrahim 

II), demonstrates bad faith. However, the three-judge panel 

noted:

Ibrahim fails to point to any evidence 

indicating the government reraised standing 

as a defense at summary judgment and trial 

with vexatious purpose. What’s more, the 

government correctly points out that there 

was at minimum a colorable argument that 

the different procedural phases of the case 

rendered their subsequent standing motions 

nonfrivolous.

Ibrahim III, 835 F.3d at 1059. Although we held that Dr. 

Ibrahim had standing in Ibrahim II, 669 F.3d at 992–94, this 

did not preclude the government from seeking to preserve 

the issue2 or from challenging her underlying constitutional 

 2 The majority asserts that the government should have sought 

review of Ibrahim II by the Supreme Court, but as Ibrahim II reversed 
84 IBRAHIM V. DHS

claims. See Ibrahim II, 669 F.3d at 997 (noting that we 

expressed “no opinion on the validity of the underlying 

constitutional claims”).

Third, Dr. Ibrahim’s claim that the government’s 

privilege assertions were made in bad faith is not compelling 

as the government was successful on many of its privilege 

assertions. See Ibrahim III, 835 F.3d at 1059.

Fourth, the three-judge panel noted:

Nor is there any evidence in the record 

demonstrating the government prevented 

Ibrahim from entering the United States to 

offer testimony in this suit, and with respect 

to her daughter, Ibrahim fails to explain why 

there was any error in the district court’s 

determination that the government’s initial 

refusal to allow her into the country was 

anything but a mistake, and a quickly 

corrected one at that.

Id. at 1060. The majority, however, asserts that it was 

unreasonable for the district court to conclude that “there 

was no evidence that the government” obstructed Dr. 

Ibrahim’s daughter from appearing at trial. Maj. Opn. at 66. 

But the question is not whether there is evidence that the 

government interfered with the daughter’s travel to the 

United States, but whether it did so in bad faith. The 

majority notes that as a citizen the daughter “was not subject 

 

and remanded for further proceedings, the government could have 

decided not to press the issue at that time.
IBRAHIM V. DHS 85

to the INA,” (Maj. Opn. at 67), but the No-Fly List and other 

travel restrictions are applicable to citizens as well as others.

Finally, I agree with the three-judge panel that:

Ibrahim’s argument that the district court 

erred by making piecemeal bad faith 

determinations is unpersuasive. Her sole 

authority on point is our decision in 

McQuiston v. Marsh, 707 F.2d 1082, 1086 

(9th Cir. 1983), superseded by statute as 

recognized by Melkonyan v. Sullivan, 

501 U.S. 89, 96, 111 S. Ct. 2157, 115 L. Ed. 2d 

78 (1991), where we made the unremarkable 

observation that “[b]ad faith may be found 

either in the action that led to the lawsuit or 

in the conduct of the litigation.” She fails, 

however, to point to any case where we have 

elevated that observation to edict. Rather, we 

have consistently required fee awards based 

on bad faith to be “traceable” to the conduct 

in question. See, e.g., Rodriguez, 542 F.3d at 

713. It was therefore proper for the district 

court to consider each claimed instance of 

bad faith in order to determine whether the 

associated fees should be subject to a marketrate increase.

Ibrahim III, 835 F.3d at 1060.

Of course, we as an en banc panel are free to disagree 

with the conclusions drawn by the three-judge panel, but 

where, as here, the standard of review is clear error, the fact 

that several appellate judges agreed with the district court is 

some evidence that the district court’s decision was not clear 

error.
86 IBRAHIM V. DHS

Although the majority remanded the issue of bad faith to 

the district court for its independent re-assessment of the 

issue, as an appellate court we should allow the district 

court’s determination of no bad faith to stand unless 

appellant shows clear error. Anderson, 470 U.S. at 572; 

Rodriguez, 542 F.3d at 709. Because Dr. Ibrahim has not 

shown clear error, the district court’s finding of no bad faith 

should be affirmed.

III

The majority, having determined that the test for 

substantial justification under the EAJA is an inclusive 

one—whether the government’s position as a whole has a 

reasonable basis in fact and law—gets carried away and 

arrogates to itself the determination in the first instance that 

the government’s position was not reasonable. However, the 

Supreme Court has clearly directed that such a determination 

should be made by the district court, Pierce, 487 U.S. at 560, 

where the parties will have an opportunity to present 

argument and evidence applying our substantial justification 

test to the particularities of this litigation. See Fisher, 

570 U.S. at 314. And while the majority, by remanding the

bad faith issue to the district court, resisted the temptation to 

decide itself whether the government has proceeded in bad 

faith, it should have recognized that there was no need for a 

remand because Dr. Ibrahim failed to show clear error in the 

district court’s holding that the government did not proceed 

in bad faith. See Rodriguez, 542 F.3d at 709. Accordingly, 

I agree with the majority’s test for substantial justification, 

but I dissent from its factual determination in the first 

instance that the government’s litigation position was not 

justified and from its disturbance of the district court’s 

finding that the government did not proceed in bad faith.