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

from the quit-while-you're-behind-DOJbags dept

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.

Filed Under: 9th circuit, attorneys' fees, civil rights, dhs, doj, no fly list, rahinah ibrahim, tsa


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  • identicon
    Pixelation, 7 Jan 2019 @ 9:53am

    Hrmm

    What's missing from this is the courts getting heavy handed with the government lawyers. That's what it will take to stop behavior like this. Instead, we get to foot the bill.

    reply to this | link to this | view in chronology ]

  • identicon
    Annonymouse, 7 Jan 2019 @ 10:23am

    Pay the piper

    The lawyers were the foot soldiers in this action though the ones with actual ethics would have at least filed some sort of I'm uncomfortable with this somewhere.
    No the one to pillory are the managers and the heads of each department involved. Have yhem break big rocks into small rocks in Alaska ... they need the income.

    reply to this | link to this | view in chronology ]

    • identicon
      Whoever, 7 Jan 2019 @ 6:18pm

      Re: Pay the piper

      The lawyers were the foot soldiers in this action though the ones with actual ethics would have at least filed some sort of I'm uncomfortable with this somewhere.

      So you are saying that the lawyers were "just following orders"? I seem to recall that this argument has been used before and failed.

      In fact, it is worse. Lawyers as members of the bar have an obligation to act ethically. They clearly did not do so in this case.

      reply to this | link to this | view in chronology ]

  • icon
    Ben (profile), 7 Jan 2019 @ 10:27am

    $4 million or $5 million?

    Ibrahim sought nearly $4 million in attorneys' fees and expenses.

    vs.

    she should be awarded pretty much every penny of the $5 million she's requested.

    A million here, a million there, pretty soon she'll be looking at some serious money.

    I just wish there was some way to punish the idiots who decided to push back because they thought they were more important than the rule of law. (and I really hope the district judge gets more than a simple "all wrong, do it again!"). They're all just bricks in the wall.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jan 2019 @ 10:43am

    Why is it so difficult for some people to admit they were wrong?

    No one is perfect and everyone makes mistakes, this is a given that I doubt anyone disputes but when it comes down to admitting it - some simply can not accept fault.

    reply to this | link to this | view in chronology ]

    • identicon
      DHS Lawyer, 7 Jan 2019 @ 10:53am

      Re:

      > No one is perfect and everyone makes mistakes, this is a given that I doubt anyone disputes but when it comes down to admitting it - some simply can not accept fault.

      Objection! Speculation! DHS never makes mistakes. All of our incompetence, and willingness to ruin lives when someone makes a mistake, is totally deliberate.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jan 2019 @ 10:53am

      Re:

      the culture of the US is such that mistakes are not seen as opportunities to learn from and correct behavior. they are seen as opportunities to punish.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Jan 2019 @ 11:57am

        Re: Re:

        With good reason, the government never learns anything from these civil rights cases and thus won't correct future behavior.

        The downside is the the punishment is ineffective, as there are never personal consequences for those involved.

        reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 8 Jan 2019 @ 1:18pm

      Re:

      No one is perfect and everyone makes mistakes

      I can admit I've made mistakes. For example, I thought I was wrong once. But it turns out I was mistaken.

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 7 Jan 2019 @ 11:05am

    The government staff involved in this debacle should be investigated in this case and held liable personally if evidence points towards acting knowing they were wrong. In the end govt money is not their money so it won't serve as incentive not to produce this shit show again. Now fire them and impose fines and you'll see the rest of the govt actually paying attention and improving how they handle this thing.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 7 Jan 2019 @ 11:34am

    Who understands...

    Oops's Im sorry...
    I made a little mistake..
    And its done.

    Really have a problem when agencies KNOW, Bury, HIDE, DENY, a small mistake.. Even in Judgement..
    How many 2 year olds do we have in the Gov.??

    Are we able to take pride in our country? Or has this Cr** been happening all our lives?? And we just get to see it better now??

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jan 2019 @ 11:42am

    Minor typo - At the end you say 5 million, but she's only requesting 3.6 million, and state 4 million earlier in the article.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 7 Jan 2019 @ 11:53am

      Re:

      I might be wrong, but the Government keeps the legal meter running by fighting the appeals. The 4 million was for costs to that point. The meter is still running.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jan 2019 @ 2:30pm

    Future Proofing

    That's wasn't just a slap in the face to the USG. That was future proofing it against any appeal.

    Really, when was the last time you heard a court sing praises like that?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jan 2019 @ 4:18pm

    This whole No-Fly list is unconstitutional. It needs to go. Or at the very least, people, anyone that wants to look on the list. They should able to be told when they go on the list and why if you're going to have this bogus list in the first place. A list that's pretty much impossible to get off from, even when you're not terrorists. You can get thrown on this list if they just don't like you. This you can kiss your flying around in the country goodbye.

    The biggest terrorist group in this country is law enforcement. This is just yet one of a zillion other examples. You're more than 9 times more likely to be killed by Law Enforcement than by a so-called Terrorist.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 8 Jan 2019 @ 1:16pm

    Funny part is all the security

    That FEW other nations use on a Visa/passport.
    Lets see...
    Chipped Cards.
    Personal ID.
    Facial ID, computerized.

    Then lets TRY to get the same from other countries..
    Where about 1/2 dont have this. they just walk across the border.
    HOW many other nations have the ID requirements that the USA can/will/should be using.
    AS well as a US citizen should have the RIGHT to know he is on that list, and WHY, WHO put him there..
    (I hope your Ex. dont work for them)

    reply to this | link to this | view in chronology ]


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