21 ms·

No-fly list trial: Court awards fees on government attorneys’ bad faith

156 points by jtc331 8y ago

nagrom 8y ago
In case anyone else is confused, the term "en banc" refers to a case which is heard before all the judges on the bench for that court, rather than just one. En banc hearings are generally made in cases deemed of extreme importance. As such, this is a fairly strong finding.
- jMyles 8y ago
  > In case anyone else is confused, the term "en banc" refers to a case which is heard before all the judges on the bench for that court, rather than just one. Rather than just three, no? When I argued pro se in front of the 2nd circuit (which was a great time, btw - I highly recommend it), it was in front of three judges.
  - ehasbrouck 8y ago
    Generally a case is heard "en banc" by a larger panel only as an appeal -- at the discretion of the court -- from an inital decision of a 3-judge panel. In most of the circuits, en banc rehearing is before all the judges of that circuit. The 9th Circuit is so large and has so many circuit judges that even en banc appeals are haeard by only a subset of the circuit judges. An en banc panel in the 9th Circuit consists of 11 judges: http://cdn.ca9.uscourts.gov/datastore/general/2017/02/10/En_Banc_Summary2.pdf http://cdn.ca9.uscourts.gov/datastore/general/2017/02/10/En_...
- sthu11182 8y ago
  You are somewhat close but a little confused on the meaning of en banc. From my brief scan of the link, the trial judge was Judge Alsup of the Northern District of California (San Francisco) which awarded fees. Judge Aslup reduced the fees. The case was appealed to the 9th circuit to a three judge panel on at least the fees issue (presumably other issues as well). The three judge panel (normal appellate practice) sided with Judge Alsup. At that point, the only option legally to appeal the appellate court is to ask for an en banc hearing with all (or eleven judges pointed out below) the appellate court judges in the 9th circuit or go to the supreme court (which is unlikely for the issue). en banc is not necessarily a case or issue of extreme importance but another appeal mechanism and also a way for the appellate court to clarify a rule of law or reverse course on a rule of law. en banc happens often in the appellate courts. Edit: I scanned the en banc opinion - it was purely about fees calculation stating "We reheard this appeal en banc to clarify the standards applicable to awards of attorneys’ fees under the EAJA."
johan_larson 8y ago
I wonder why the government fought this tooth and nail. Do they just really hate to lose, so they double down time and again? Or are they worried that losing once will open the floodgates to a torrent of litigation?
- xfitm3 8y ago
  My belief is that behavior like this is no more than an attempt at a cover up and ultimately protecting each other. Much like some police officers will perjure themselves to protect another officer.
  - Gibbon1 8y ago
    This is the sort of behavior that groups of incompetent people engage in. Specifically reflexively trying to hide any appearance of incompetence.
- chongli 8y ago
  I would call it a mixture of pride and moral hazard. People are generally far less likely to pursue "scorched earth litigation" when they must personally bear the costs and risks of their actions. Given that this is the government, they are playing this cruel game with other people's money. Whatever happens, the public loses.
  - danharaj 8y ago
    > they are playing this cruel game with other people's money. This meme about taxes needs to die.
    - true_religion 8y ago
      The government represents us in the same way that a hedge fund owner represents its clients. They have a job to do: ensuring the money is well spent, however it isn't their money and they do not make their own rules.
tomohawk 8y ago
False claims are so damaging. Its a problem that's been with us a long time, though. It's even one of the 10 commandments: "You shall not bear false witness against your neighbor" - Exodus 20:16
- daveFNbuck 8y ago
  There's a pretty wide range of interpretations in the US about what neighbor means in that sentence, so there's a good chance the people defending this case think it's not wrong to bear false witness against foreigners.
  - rwbhn 8y ago
    The author's son gives a very broad interpretation: https://www.biblegateway.com/passage/?search=Luke+10%3A29-37&version=NIV https://www.biblegateway.com/passage/?search=Luke+10%3A29-37...
  - vajrabum 8y ago
    That may well be but it has nothing to do with the bible. The bible is explict about the treatment due to foreigners and in fact that is reflected in US law. Cursed be anyone who perverts the justice due to the sojourner, the fatherless, and the widow. - Deut 27:19 There shall be one law for the native and for the stranger who sojourns among you. Exodus 12:49 You shall treat the stranger who sojourns with you as the native among you, and you shall love him as yourself, for you were strangers in the land of Egypt - Lev 19:34
    - daveFNbuck 8y ago
      I think you're taking it a little too far when you say this has nothing to do with the bible. There are also verses instructing people to kill, rape, and enslave foreigners. As with most topics, there's enough in the bible to support whichever side you prefer.
tyingq 8y ago
Judge William Alsup ruling... You may remember him from the Uber/Google or Google/Oracle proceedings. He codes: https://www.theverge.com/2017/10/19/16503076/oracle-vs-google-judge-william-alsup-interview-waymo-uber https://www.theverge.com/2017/10/19/16503076/oracle-vs-googl...
- dchest 8y ago
  En banc, the 9th Circuit reversed the panel and found that Judge Alsup had applied the wrong standard and abused his discretion in finding that the government hadn’t acted in bad faith . . .
asah 8y ago
Ok, so what's the disincentive for government attorneys to do this in the future???
- johan_larson 8y ago
  Probably the sheer amount of time and effort legal campaign has consumed. No government agency has infinite money and staff.
curiousgal 8y ago
Dumb question, how can a non-citizen sue the government in an American court?
- empath75 8y ago
  For the most part, any legal resident of the us enjoys the same rights as citizens.
- ComputerGuru 8y ago
  Not a dumb question at all. Courts have been reluctant to back that precedent/law in recent years. Filings get around it by naming individuals rather than the US government. In this case, it was entered as 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; 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
- ehasbrouck 8y ago
  This was one of the issues raised, and resolved in Dr. Ibrahim's favor, in the second of the three appeals to the 9th Circuit Court of Appeals in this case. The court found that she had sufficient connection to the US (including having lived in the US for years, and having children who were born in the US and are US citizens) to give her legal "standing" to raise these issues. However, non-US citizens outside the US generally don;t have any right to challenge denials of US visas in US courts, which is why she remains barred from the US with no way to challenge that. (It's possible that one of her children could raise that issue in a US court, but they are afraid that if they they return to the US, the US might put them too on the no-fly list again, trapping them in the US.)
onetimemanytime 8y ago
If this is a victory, I'd hate to see defeat: 14 YEARS and millions in fees to reverse a clerical mistake. Not one FBI or DOJ employee is in jail, suspended or fired.
- jkartchner 8y ago
  We don't see defeats because they don't have the money for a voice that will carry. They happen every day. Those people just have to deal with being wronged, quietly. This is how imperfect people become true criminals.
  - thaumasiotes 8y ago
    The (rhetorical) question is: if "victory" means spending 14 years and $4,000,000 in order to not get a remedy -- while no one on the "losing" side suffers any penalty -- if that's "victory", what does "defeat" look like? There was no claim about the existence or visibility of actual defeats.
    - jkartchner 8y ago
      Yes. It was all rhetorical.
williesleg 8y ago
Hacker news?
mabbo 8y ago
> Even Attorney General Eric Holder got involved in the government’s obstruction of discovery in the case, signing what appears to have been a perjured affidavit falsely claiming that he had personal knowledge that disclosing the status or reasons for Dr. Ibrahim’s blacklisting (i.e. the fact that an FBI agent had made a mistake), “could reasonably be expected to cause significant harm to the national security.” The attorney general, knowing full well that the entire case was based on the government screwing up, perjures himself by claiming that letting anyone know why this happened would cause harm to national security. This is the danger of secrecy in law. When you can claim something must be kept secret with no burden of proof, you let government's hide embarrassments.
- zaroth 8y ago
  This is bad, and there should be more serious repercussions against government agents who lie under oath in the course of a cover-up. This though pales in comparison to what’s happening in the Concord Manangement trial (Mueller v Internet Trolls) with secret evidence presented to the judge ex parte.
- rayiner 8y ago
  Yeah, there is no way that counts as perjury. The question asks for a legal conclusion, not a fact, and for good reasons we make it very hard for anyone to call perjury in strained conclusions. In a real case, you wouldn’t just have to admit “oops an agent screwed up.” You’d have to give some sort of contextual information about the process the agent was supposed to be following, and how he deviated. There is a colorable argument that this could result in some disclosure of importance to national security. Just because it’s a stupid argument and the judge didn’t buy it doesn’t mean it’s perjury. The government got the correct sanction here, a finding of “bad faith” and attorneys’ fees, which is what courts do when parties push thin legal arguments further than they should.
  - hedora 8y ago
    Surely this can’t be the proper standard for national security claims. Otherwise, arguments of the form must always be acceptable, and without repercussion: Based on [redacted, even from the judge] the court must make [arbitrary judgment]. That’s giving the exective branch more authority than simply giving them immunity from perjury would!
test6554 8y ago
This is why I like lower taxes. The government should be so desperate for money that it would have had to be more reasonable with which cases it chooses to pursue.
- dane-pgp 8y ago
  No matter how little money you give a government, it will always rather use that money for unreasonable things if you elect a government that has unreasonable priorities. In fact, the opposite argument almost makes more sense: "I like paying high taxes, so that, after the government has wasted money on the unreasonable things it wants, it will still have so much money that it will have to spend it on reasonable things as well."
- hopler 8y ago
  The government would make self-protecting cases higher priority than issues that affect citizens
hopler 8y ago
Remember that State Secrets have a long history of being used to cover up government incompetence and prevent victims of the government from seeking justice. https://en.m.wikipedia.org/wiki/United_States_v._Reynolds https://en.m.wikipedia.org/wiki/United_States_v._Reynolds

156 points by jtc331 8y ago

In case anyone else is confused, the term "en banc" refers to a case which is heard before all the judges on the bench for that court, rather than just one. En banc hearings are generally made in cases deemed of extreme importance. As such, this is a fairly strong finding.

jMyles 8y ago
> In case anyone else is confused, the term "en banc" refers to a case which is heard before all the judges on the bench for that court, rather than just one. Rather than just three, no? When I argued pro se in front of the 2nd circuit (which was a great time, btw - I highly recommend it), it was in front of three judges.
- ehasbrouck 8y ago
  Generally a case is heard "en banc" by a larger panel only as an appeal -- at the discretion of the court -- from an inital decision of a 3-judge panel. In most of the circuits, en banc rehearing is before all the judges of that circuit. The 9th Circuit is so large and has so many circuit judges that even en banc appeals are haeard by only a subset of the circuit judges. An en banc panel in the 9th Circuit consists of 11 judges: http://cdn.ca9.uscourts.gov/datastore/general/2017/02/10/En_Banc_Summary2.pdf http://cdn.ca9.uscourts.gov/datastore/general/2017/02/10/En_...
sthu11182 8y ago
You are somewhat close but a little confused on the meaning of en banc. From my brief scan of the link, the trial judge was Judge Alsup of the Northern District of California (San Francisco) which awarded fees. Judge Aslup reduced the fees. The case was appealed to the 9th circuit to a three judge panel on at least the fees issue (presumably other issues as well). The three judge panel (normal appellate practice) sided with Judge Alsup. At that point, the only option legally to appeal the appellate court is to ask for an en banc hearing with all (or eleven judges pointed out below) the appellate court judges in the 9th circuit or go to the supreme court (which is unlikely for the issue). en banc is not necessarily a case or issue of extreme importance but another appeal mechanism and also a way for the appellate court to clarify a rule of law or reverse course on a rule of law. en banc happens often in the appellate courts. Edit: I scanned the en banc opinion - it was purely about fees calculation stating "We reheard this appeal en banc to clarify the standards applicable to awards of attorneys’ fees under the EAJA."

johan_larson 8y ago

I wonder why the government fought this tooth and nail. Do they just really hate to lose, so they double down time and again? Or are they worried that losing once will open the floodgates to a torrent of litigation?

xfitm3 8y ago
My belief is that behavior like this is no more than an attempt at a cover up and ultimately protecting each other. Much like some police officers will perjure themselves to protect another officer.
- Gibbon1 8y ago
  This is the sort of behavior that groups of incompetent people engage in. Specifically reflexively trying to hide any appearance of incompetence.
chongli 8y ago
I would call it a mixture of pride and moral hazard. People are generally far less likely to pursue "scorched earth litigation" when they must personally bear the costs and risks of their actions. Given that this is the government, they are playing this cruel game with other people's money. Whatever happens, the public loses.
- danharaj 8y ago
  > they are playing this cruel game with other people's money. This meme about taxes needs to die.
  - true_religion 8y ago
    The government represents us in the same way that a hedge fund owner represents its clients. They have a job to do: ensuring the money is well spent, however it isn't their money and they do not make their own rules.

tomohawk 8y ago

False claims are so damaging. Its a problem that's been with us a long time, though. It's even one of the 10 commandments: "You shall not bear false witness against your neighbor" - Exodus 20:16

daveFNbuck 8y ago
There's a pretty wide range of interpretations in the US about what neighbor means in that sentence, so there's a good chance the people defending this case think it's not wrong to bear false witness against foreigners.
- rwbhn 8y ago
  The author's son gives a very broad interpretation: https://www.biblegateway.com/passage/?search=Luke+10%3A29-37&version=NIV https://www.biblegateway.com/passage/?search=Luke+10%3A29-37...
- vajrabum 8y ago
  That may well be but it has nothing to do with the bible. The bible is explict about the treatment due to foreigners and in fact that is reflected in US law. Cursed be anyone who perverts the justice due to the sojourner, the fatherless, and the widow. - Deut 27:19 There shall be one law for the native and for the stranger who sojourns among you. Exodus 12:49 You shall treat the stranger who sojourns with you as the native among you, and you shall love him as yourself, for you were strangers in the land of Egypt - Lev 19:34
  - daveFNbuck 8y ago
    I think you're taking it a little too far when you say this has nothing to do with the bible. There are also verses instructing people to kill, rape, and enslave foreigners. As with most topics, there's enough in the bible to support whichever side you prefer.

tyingq 8y ago

Judge William Alsup ruling... You may remember him from the Uber/Google or Google/Oracle proceedings. He codes: https://www.theverge.com/2017/10/19/16503076/oracle-vs-google-judge-william-alsup-interview-waymo-uber https://www.theverge.com/2017/10/19/16503076/oracle-vs-googl...

dchest 8y ago
En banc, the 9th Circuit reversed the panel and found that Judge Alsup had applied the wrong standard and abused his discretion in finding that the government hadn’t acted in bad faith . . .

asah 8y ago

Ok, so what's the disincentive for government attorneys to do this in the future???

johan_larson 8y ago
Probably the sheer amount of time and effort legal campaign has consumed. No government agency has infinite money and staff.

curiousgal 8y ago

Dumb question, how can a non-citizen sue the government in an American court?

empath75 8y ago
For the most part, any legal resident of the us enjoys the same rights as citizens.
ComputerGuru 8y ago
Not a dumb question at all. Courts have been reluctant to back that precedent/law in recent years. Filings get around it by naming individuals rather than the US government. In this case, it was entered as 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; 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
ehasbrouck 8y ago
This was one of the issues raised, and resolved in Dr. Ibrahim's favor, in the second of the three appeals to the 9th Circuit Court of Appeals in this case. The court found that she had sufficient connection to the US (including having lived in the US for years, and having children who were born in the US and are US citizens) to give her legal "standing" to raise these issues. However, non-US citizens outside the US generally don;t have any right to challenge denials of US visas in US courts, which is why she remains barred from the US with no way to challenge that. (It's possible that one of her children could raise that issue in a US court, but they are afraid that if they they return to the US, the US might put them too on the no-fly list again, trapping them in the US.)

onetimemanytime 8y ago

If this is a victory, I'd hate to see defeat: 14 YEARS and millions in fees to reverse a clerical mistake. Not one FBI or DOJ employee is in jail, suspended or fired.

jkartchner 8y ago
We don't see defeats because they don't have the money for a voice that will carry. They happen every day. Those people just have to deal with being wronged, quietly. This is how imperfect people become true criminals.
- thaumasiotes 8y ago
  The (rhetorical) question is: if "victory" means spending 14 years and $4,000,000 in order to not get a remedy -- while no one on the "losing" side suffers any penalty -- if that's "victory", what does "defeat" look like? There was no claim about the existence or visibility of actual defeats.
  - jkartchner 8y ago
    Yes. It was all rhetorical.

williesleg 8y ago

Hacker news?

mabbo 8y ago

> Even Attorney General Eric Holder got involved in the government’s obstruction of discovery in the case, signing what appears to have been a perjured affidavit falsely claiming that he had personal knowledge that disclosing the status or reasons for Dr. Ibrahim’s blacklisting (i.e. the fact that an FBI agent had made a mistake), “could reasonably be expected to cause significant harm to the national security.” The attorney general, knowing full well that the entire case was based on the government screwing up, perjures himself by claiming that letting anyone know why this happened would cause harm to national security. This is the danger of secrecy in law. When you can claim something must be kept secret with no burden of proof, you let government's hide embarrassments.

zaroth 8y ago
This is bad, and there should be more serious repercussions against government agents who lie under oath in the course of a cover-up. This though pales in comparison to what’s happening in the Concord Manangement trial (Mueller v Internet Trolls) with secret evidence presented to the judge ex parte.
rayiner 8y ago
Yeah, there is no way that counts as perjury. The question asks for a legal conclusion, not a fact, and for good reasons we make it very hard for anyone to call perjury in strained conclusions. In a real case, you wouldn’t just have to admit “oops an agent screwed up.” You’d have to give some sort of contextual information about the process the agent was supposed to be following, and how he deviated. There is a colorable argument that this could result in some disclosure of importance to national security. Just because it’s a stupid argument and the judge didn’t buy it doesn’t mean it’s perjury. The government got the correct sanction here, a finding of “bad faith” and attorneys’ fees, which is what courts do when parties push thin legal arguments further than they should.
- hedora 8y ago
  Surely this can’t be the proper standard for national security claims. Otherwise, arguments of the form must always be acceptable, and without repercussion: Based on [redacted, even from the judge] the court must make [arbitrary judgment]. That’s giving the exective branch more authority than simply giving them immunity from perjury would!

test6554 8y ago

This is why I like lower taxes. The government should be so desperate for money that it would have had to be more reasonable with which cases it chooses to pursue.

dane-pgp 8y ago
No matter how little money you give a government, it will always rather use that money for unreasonable things if you elect a government that has unreasonable priorities. In fact, the opposite argument almost makes more sense: "I like paying high taxes, so that, after the government has wasted money on the unreasonable things it wants, it will still have so much money that it will have to spend it on reasonable things as well."
hopler 8y ago
The government would make self-protecting cases higher priority than issues that affect citizens

hopler 8y ago

Remember that State Secrets have a long history of being used to cover up government incompetence and prevent victims of the government from seeking justice. https://en.m.wikipedia.org/wiki/United_States_v._Reynolds https://en.m.wikipedia.org/wiki/United_States_v._Reynolds