The underlying litigation arose out of Plaintiff’s mistaken placement on the No Fly List. Plaintiff prevailed in part following a bench trial and sought attorneys’ fees and expenses under EAJA. Plaintiff asserted that she was entitled to attorneys' fees under 28 U.S.C. § 2412(b) or, alternatively, under 28 U.S.C. § 2412(d).
Regarding § 2412(d), the district court found that the government’s position was not “substantially justified” in certain respects and awarded fees and expenses, but significantly less than Plaintiff had requested. However, the district court denied Plaintiff’s request for bad faith fees under § 2412(b). On appeal, the en banc Ninth Circuit ruled that the district court erred it its approach to determining substantial justification, and the en banc Ninth Circuit made its own substantial justification determination. In this regard, the en banc Ninth Circuit, among other things ruled that “[t]he district court correctly concluded that the government’s litigation position—to defend the indefensible, its No Fly list error—was not reasonable. As the district court stated, ‘[t]he government’s defense of such inadequate due process in [Plaintiff’s] circumstance— when she was concededly not a threat to national security--was not substantially justified.’” In addition, the en banc Ninth Circuit held that the district court erred in determining that the government had not engaged in bad faith conduct.