Dec 17 2020

Lawyers who challenged “no-fly” order finally get paid

Dr. Rahinah Ibrahim’s lawsuit against the US Department of Homeland Security came to a close this week with an order by Judge William Alsup of the U.S. District Court for the Northern District of California dismissing Dr. Ibrahim’s complaint after the Federal government finally paid  out a settlement to Dr. Ibrahim’s lawyers for successfully representing her in more than a decade of litigation.

The dismissal come more than fifteen years after Dr. Ibrahim was denied boarding and wrongly arrested at San Francisco International Airport when she tried to board a flight to a conference in Hawaii where she was scheduled to present a paper related to her doctoral research in architecture at Stanford University. Dr. Ibrahim was recovering from an emergency hysterectomy and in a wheelchair, and needed assistance from paramedics while in the lockup at the airport before she was eventually released without charges.

Seven years ago, after two interlocutory appeals to the 9th Circuit Court of Appeals and then the first and to date only trial in a case challenging a “no-fly” order by the US government, Judge Alsup ruled that Dr. Ibrahim’s rights had been violated by the government’s secret and wrongful blacklisting of her and denial of her right to travel, and ordered the government to remove Dr. Ibrahim from  its “no-fly” blacklist.

Before the trial, Attorney General Eric Holder signed an apparently perjured declaration certifying that it would cause grave harm to national security to disclose whether or why the government put Dr. Ibrahim on the no-fly list. But in his decision, Judge Alsup revealed what the government had known all along: The only reason Dr. Ibrahim was put on the no-fly list in the first place was that an FBI agent on the mosque-watching detail mistakenly filled out the blacklist and watchlist “nomination”  form incorrectly.

The government chose not to appeal Judge Alsup’s trial judgement, which became final.

But where does that leave Dr. Ibrahim, or her lawyers?

Dr. Ibrahim defended her dissertation remotely (years before the COVID-19 pandemic made that sort of thing more normal) and received her doctorate from Stanford in absentia. She’s now a full professor of architecture at a university in Malaysia. But although she was removed from the US No-fly list, her US visa was revoked (despite her ties to the US and US-born, US-citizen children) and she has been unable to return to the US. The reasons for the visa revocation are secret and cannot be challenged in US court.

A team from the law firm of McManis Faulkner led by Elizabeth Pipkin represented Dr. Ibrahim pro bono in the District Court and on appeal. After the trial judgement, they moved Judge Alsup for an award from the government of Dr. Ibrahim’s legal fees and costs, which as of that point amounted to $3.9 million.

That motion should have been largely uncontested and routinely granted, except for any minor factual disputes about the actual amount of time or expenses.

But the government continued what the 9th Circuit later characterized as its “scorched earth” litigation strategy, first contesting the fee award line by line in the District Court (agreeing to pay only about 10% of the claim submitted) and then fighting — and losing — yet another appeal to the 9th Circuit with respect to the criteria and procedures for deciding whether the government’s lawyers had acted in “bad faith”.

In January of 2019, after five years of post-trial litigation over the fee award, the 9th Circuit ruled in Dr. Ibrahim’s favor for a third time, finding that Judge Alsup had erred in denying Dr. Ibrahim’s motion for fee award based on a finding that the government had acted in bad faith. The 9th Circuit sent the case back to Judge Alsup to reassess the fee award.

Three appeals court strikes and you’re out? Not if you’re the US government opposing a plaintiff who you have admitted that you knew along was innocent.

The government petitioned the US Supreme Court to overturn the 9th Circuit ruling with respetc to the fee award and the standard of government bad faith. That petition was, unsurprisingly, denied by the Supreme Court. But it delayed payment to Dr. Ibrahim’s lawyers for almost an entire year longer, until October 2019.

Only after being denied a hearing in the Supreme Court did the government begin serious negotiations with Dr. Ibrahim’s lawyers regarding a settlement of their renewed claim for an award of the still-unrecovered fees and costs through trial (plus the later costs of the third 9th Circuit appeal and the opposition to the Supreme Court petition). But those negotiations took more than another year before the government finally agreed to, and paid, a fee settlement earlier this month.

The amount of the fee settlement is not disclosed in the court filings, and neither the government’s lawyers nor Dr. Ibrahim’s lawyers responded to a request for comment.

We presume that the government didn’t spend millions of dollars fighting Dr. Ibrahim and her lawyers for fifteen years just to protect an FBI agent who had made a mistake. And its goal couldn’t have been to protect national security, since it knew all along — as it eventually admitted — that Dr. Ibrahim posed no threat to the US.

The government’s goal was to establish that it would be both futile and prohibitively expensive to challenge a no-fly order, so that nobody would ever again try to do so.

Dr. Ibrahim “won” at trial, but remains barred from the US indefinitely, perhaps for life, for reasons she may never learn.

Dr. Ibrahim’s lawyers “won” their fee appeals, all the way to the Supreme Court, but got only an unknown fraction of their expenses reimbursed, years and years after they invested millions of dollars in time and out-of-pocket costs in a case they might have lost outright.

We hope that others will continue to challenge no-fly orders. But we fear that too many travelers and attorneys alike will conclude from this case — as the DHS wants them to conclude — that “resistance is futile.”

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