Appeals Court Says Gov’t Will Be Paying Even More Legal Fees For Its Extended Loss In TSA No Fly List Lawsuit

Tech Dirt – by Tim Cushing

Fourteen years after an FBI agent mistakenly dumped Dr. Rahinah Ibrahim on the TSA’s “No Fly” list, the Ninth Circuit Appeals Court is calling out the government for its horrendous behavior during the case, as well as ordering it to cough up more in legal fees. 

The government’s concession in this lawsuit was full and complete. It admitted Ibrahim posed no threat to national security, had never posed a threat to national security, and never should have been placed on the list, which stranded her in Malaysia back in 2005. En route to her victory, the government engaged in all sorts of malicious behavior, including arguing her No Fly status couldn’t be discussed in open court, placing one of her witnesses on the No Fly list, and doing everything in its power to drag out the litigation. Stripped of all the legalese, the government basically spent most of decade arguing that an FBI agent’s mistake fully justified Ibrahim being treated like a national security threat.

Ibrahim’s case has made a return trip to the Ninth Circuit Court of Appeals — this time asking for a second opinion on the district court’s legal fee awards. The Appeals Court says the lower court shortchanged Ibrahim’s representation (civil rights law firm McManis Faulkner) by failing to consider the government’s horrendous behavior in its totality. The court really doesn’t like the fact the government chose a mistake by a government agency as the hill it was willing to die for. From the decision [PDF]:

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 doubled-down over the course of the litigation with a no holds-barred defense.

The court then notes the government wasted more time (and racked up more legal fees) by stonewalling discovery efforts, evoking state secrets exceptions to anything it could, and engaging in extensive discussions about the whether the trial should be open to the public when it should have been arguing the merits of its dismissal motions.

The lower court somehow decided this lengthy headache was not the government’s fault. It also decided every claim it didn’t discuss was a loss for Ibrahim. The final tally was a 90% reduction in awarded fees. Ibrahim sought nearly $4 million in attorneys’ fees and expenses. The district court said the extended dicking around by the government was worth less than $500,000. The Appeals Court says this is completely wrong. Ibrahim won decisively.

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.

And the government behaved badly throughout the years of litigation, long after it discovered Ibrahim’s placement on the No Fly list was a clerical error.

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.’” […] 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.

Ibrahim will still have to spend a bit more time in court before all of this is done. But the Appeals Court’s message to the district court is clear: she should be awarded pretty much every penny of the $5 million she’s requested.

Start the Conversation

Your email address will not be published. Required fields are marked *