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9th Circuit Cites Government Lawyers' Bad Faith in No-Fly Case

By William Vogeler, Esq. on January 04, 2019 12:56 PM

The U.S. Ninth Circuit Court of Appeals blasted government lawyers for "bad faith" tactics in a case by a former Stanford researcher who was placed on the terrorist no-fly list.

In Ibrahim v. DHS, the en banc panel said the U.S. attorneys "played discovery games, made false representations," and otherwise misused the court process. And that was only the half of it.

The 11-member panel sent the case back to the trial judge to reassess the plaintiff's claim for $3.6 million in attorney's fees. As for plaintiff Dr. Rahinah Ibrahim, she won her case five years ago.

Terrorist No-Fly List

Ibrahim, an engineering student at the time, was boarding a flight in San Francisco when the government intervened. FBI agent Kevin Kelley, who was interviewing Muslims as part of an "outreach program," said he accidentally placed Ibrahim on a no-fly list for terrorists.

She was detained, later released, and denied re-entry into the country. She sued the Department of Homeland Security, but the government fought back even though it knew about the mistake.

The case dragged on for eight years. Two days before trial, the government admitted the agent misread a form.

"Once the government discovers that its litigation position is baseless, it may not continue to defend it," Judge Kim McLane Wardlaw wrote for the majority.

Misread a Form

The appeals court said the government's lawyers "vigorously contested" their baseless position and "essentially double-downed over the course of the litigation with a no-holds barred" defense.

Ibrahmin won her case, but appealed the trial court's award of attorney's fees. The judge gave them $419,987, based on a statutory amount of $125 per hour.

The Ninth Circuit reversed that decision and remanded, saying the plaintiff's attorneys deserve the "vast majority" of their requested $3.6 million in fees.

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