Ibrahim v. U.S. Department of Homeland Security

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DR. RAHINAH IBRAHIM, an Nos. 14-16161
individual, 14-17272
Plaintiff-Appellant,
D.C. No.
v. 3:06-cv-545-
WHA
U.S. DEPARTMENT OF HOMELAND
SECURITY; JEH JOHNSON,* in his
official capacity as the Secretary of OPINION
the Department of Homeland
Security; TERRORIST SCREENING
CENTER; CHRISTOPHER M. PIEHOTA,
in his official capacity as Director of
the Terrorist Screening Center;
FEDERAL BUREAU OF
INVESTIGATION; JAMES COMEY, in
his official capacity as Director of
the Federal Bureau of Investigation;
LORETTA E. LYNCH, Attorney
General, in her official capacity as
Attorney General; ANDREW G.
MCCABE, in his official capacity as
Executive Assistant Director of the
FBI’s National Security Branch;
NATIONAL COUNTERTERRORISM

*
Current cabinet members and other federal officials have been
substituted for their predecessors pursuant to Rule 43(c)(2) of the Federal
Rules of Appellate Procedure.
2 IBRAHIM V. USDHS

CENTER; NICHOLAS RASMUSSEN, in
his official capacity as Director of
the National Counterterrorism
Center; DEPARTMENT OF STATE;
JOHN KERRY, in his official capacity
as Secretary of State; UNITED STATES
OF AMERICA,
Defendant-Appellees.

Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding

Argued and Submitted June 14, 2016
San Francisco, California

Filed August 30, 2016

Before: Richard R. Clifton and Sandra S. Ikuta, Circuit
Judges, and Royce C. Lamberth, ** Senior District Judge.

Opinion by Judge Lamberth

**
The Honorable Royce C. Lamberth, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
 IBRAHIM V. USDHS 3

SUMMARY ***

Equal Access to Justice Act

The panel affirmed in part and reversed in part the district
court’s award of attorney’s fees and expenses pursuant to the
Equal Access to Justice Act (“EAJA”) and the Supreme
Court’s decision in Hensley v. Eckerhart, 461 U.S. 424
(1983), and remanded for further proceedings.

Dr. Rahinah Ibrahim commenced the underlying action
seeking monetary and equitable relief against various state
and federal officials based on her inclusion in the
government’s terrorist databases, including the No-Fly List.
After two dismissals and subsequent reversals and remands
by this court, the district court held a week-long bench trial
and concluded that Ibrahim had been improperly placed
within the government’s databases. Ibrahim sought
$3,360,057 in market-rate attorney’s fees and $293,860 in
expenses.

The district court determined that Ibrahim was a
prevailing party under EAJA, but further found that the
government was substantially justified in some of its
positions. The district court awarded Ibrahim $419,987.36
in fees and $34,768.71 in costs and expenses.

In light of the Supreme Court’s decision in
Commissioner, INS v. Jean, 496 U.S. 154 (1990) (providing
that courts are to make but one substantial justification
determination on the case as a whole), the panel held that the
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 IBRAHIM V. USDHS

district court erred by making multiple substantial
justification determinations and accordingly reversed. The
panel also reversed the district court’s various reductions
imposed on Ibrahim’s eligible fees arising from its incorrect
substantial justification analysis. The panel affirmed the
district court’s bad faith findings as well as its relatedness
findings under Hensley . The panel also affirmed the district
court’s striking of Ibrahim’s objections to the special
master’s report on expenses.

COUNSEL

Marwa Elzankaly (argued), Jennifer Murakami, Ruby Kazi,
Christine Peek, Elizabeth Pipkin, and James McManis,
McManis Faulkner, San Jose, California, for Plaintiff-
Appellant.

Joshua Waldman (argued) and Sharon Swingle, Attorneys,
Appellate Staff; Melinda Haag, United States Attorney;
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General; Civil Division, United States Department of
Justice, Washington, D.C., for Defendants-Appellees.

Chet A. Kronenberg and JoAnne S. Jennings, Simpson
Thacher & Bartlett LLP, Los Angeles, California, for Amici
Curiae American Civil Liberties Union of California, Asian
Americans Advancing Justice-Asian Law Caucus, Asian
Americans Advancing Justice-Los Angeles, Center for
Constitutional Rights, Electronic Frontier Foundation, and
National Immigration Law Center.
 IBRAHIM V. USDHS 5

OPINION

LAMBERTH, Senior District Judge:

Plaintiff-Appellant Dr. Rahinah Ibrahim appeals the
district court’s award of attorney’s fees and expenses
pursuant to the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412 and the Supreme Court’s decision in
Hensley v. Eckerhart, 461 U.S. 424 (1983). She contends the
district court incorrectly found that the government had not
acted in bad faith under EAJA section 2412(b) and therefore
erred by declining to award market-rate fees. She further
argues the district court erred by finding that the
government’s conduct was substantially justified under
EAJA section 2412(d)(1)(A) on discrete issues and at
discrete stages of the litigation, rather than making a single
determination on the case as a whole. Finally, she challenges
the district court’s striking of her objections to a special
master’s report on her claimed expenses. We have
jurisdiction under 28 U.S.C. § 1291.

In light of the Supreme Court’s decision in
Commissioner, INS v. Jean, 496 U.S. 154 (1990), we hold
the district court erred by making multiple substantial
justification determinations and accordingly reverse. We
also reverse the district court’s various reductions imposed
on Ibrahim’s eligible fees arising from its incorrect
substantial justification analysis.

We however affirm the district court’s bad faith findings
as well as its relatedness findings under Hensley v.
Eckerhart, 461 U.S. 424 (1983). We also affirm the district
court’s striking of Ibrahim’s objections to the special
master’s report on expenses.
6 IBRAHIM V. USDHS

I.

Fee disputes, the Supreme Court has warned, “should not
result in a second major litigation.” Hensley, 461 U.S. at 437.
But, unsurprisingly, they sometimes do, and the instant case
is one such example.

In January 2006, Ibrahim commenced this action seeking
monetary and equitable relief against various state and
federal officials alleging 42 U.S.C. § 1983 claims, state law
tort claims, and constitutional claims based on her inclusion
in the government’s terrorist databases, including the No-Fly
List. After two dismissals and subsequent reversals and
remands by this Court, Ibrahim v. Dep’t of Homeland Sec.,
538 F.3d 1250 (9th Cir. 2008) (“Ibrahim I”), Ibrahim v.
Dep’t of Homeland Sec., 669 F.3d 983 (9th Cir. 2012)
(“Ibrahim II”), the district court held a week-long bench
trial. 1

The district court concluded that Ibrahim had been
improperly placed within the government’s databases. 2
Specifically, it found the FBI agent who nominated Ibrahim
to the government watchlists incorrectly filled out the
nomination form. As a result, Ibrahim was placed on the No-
Fly List and another terrorist screening watchlist, rather than
the lists on which the FBI agent had intended she be placed.
Id. Accordingly, the court below ruled in favor of Ibrahim

1
At the time of trial, the only remaining claims were those against the
federal defendants arising from their placement of Ibrahim on the
government’s terrorism watchlists, as well as their revocation and
subsequent denial of Ibrahim’s entry visas.

2
The district court’s factual findings are not challenged on appeal;
unless otherwise noted, factual assertions contained herein reflect those
findings.
 IBRAHIM V. USDHS 7

on her procedural due process claim, concluding the
government’s nomination error involved a “conceded,
proven, undeniable, and serious error by the government.”
Although Ibrahim had been removed from the No-Fly List
in early 2005, the government was ordered to remove any
information contained in its databases associated with the
2004 nomination form, including those databases the FBI
agent had intended Ibrahim be placed on, because the
nomination form had been incorrectly filled out. It also
ordered the government to affirmatively inform Ibrahim she
was no longer on the No-Fly List because the government’s
Travel Redress Inquiry Plan—the only means by which an
individual may challenge their suspected placement on the
No-Fly List—failed to affirmatively disclose whether she
had indeed been placed on the list incorrectly and whether
she had been removed as a result.

The district court also granted unasked-for relief under
our now-vacated precedent in Din v. Kerry, 718 F.3d 856,
863 (9th Cir. 2013), vacated, 135 S. Ct. 2128 (2015) by
ordering the government to identify the specific subsection
under section 212(a)(3)(B) of the Immigration and
Nationality Act that rendered Ibrahim ineligible for a visa in
2009 and 2013. Lastly, on additional independent grounds,
the district court granted further relief by finding that the
consular officer who denied Ibrahim her visa erred in
indicating she could not apply for a discretionary waiver of
her ineligibility. The district court ordered the government
to permit such a waiver application.

The district court did not reach the remainder of
Ibrahim’s other claims which included her First
Amendment, substantive due process, equal protection, and
Administrative Procedure Act claims because, in its view,
8 IBRAHIM V. USDHS

“even if successful, [they] would not lead to any greater
relief than already ordered.”

Thereafter, the parties and the court engaged in a lengthy
and contentious fee dispute. In total, Ibrahim sought
$3,630,057.50 in market-rate attorney’s fees and
$293,860.18 in expenses. Adopting the recommendations of
a special master, the district court ultimately awarded
Ibrahim $419,987.36 in fees and $34,768.71 in costs and
expenses. Ibrahim challenges both the underlying legal
framework the district court utilized to determine the fees
she was eligible to recover, as well as the district court’s
adoption of various reductions applied to those eligible fees
by the special master.

II.

We begin with the district court’s application of the
EAJA.

Congress passed the EAJA “to eliminate for the average
person the financial disincentive to challenge unreasonable
governmental actions.” Jean, 496 U.S. at 163. To that end,
the EAJA permits a “prevailing party” to recover fees and
other expenses from the government unless the government
demonstrates that its position was “substantially justified.”3
28 U.S.C. § 2412(d)(1)(A); Thangaraja v. Gonzales,
428 F.3d 870, 874 (9th Cir. 2005) (quoting Gonzales v. Free
Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005)). The EAJA
limits attorney’s fees to “the prevailing market rates for the
kind and quality of the services furnished” but, subject to

3
The EAJA also provides for an exception where “special
circumstances” would make a fee award to the prevailing party unjust.
28 U.S.C. § 2412(d)(1)(A).
 IBRAHIM V. USDHS 9

exception, does not permit an award in excess of $125 per
hour. 28 U.S.C. § 2412(d)(2)(A). One such exception to that
cap applies where the court finds the government acted in
bad faith. Rodriguez v. United States, 542 F.3d 704, 709 (9th
Cir. 2008).

After determining Ibrahim was a prevailing party, the
court below found that the government was substantially
justified respecting its pre-Ibrahim II standing arguments, its
defense against Ibrahim’s visa-related claims, and its various
privilege assertions. It disallowed fees associated with those
issues. It found the government’s conduct otherwise was not
justified.

It further ruled that the government had not acted in bad
faith, and with one exception not relevant here, imposed the
EAJA’s hourly cap to Ibrahim’s fees.

Ibrahim contends these findings were erroneous. We
address each in turn.

A.

We review a district court’s substantial justification
determination for abuse of discretion. Gonzales, 408 F.3d at
618. We review its interpretation of the EAJA de novo.
Edwards v. McMahon, 834 F.2d 796, 801 (9th Cir. 1987).

The government’s “position” when considered within
the EAJA context includes both the government’s litigation
position as well as the “action or failure to act by the agency
upon which the civil action is based.” 28 U.S.C.
§ 2412(d)(1)(B). Hence, we have often articulated the
substantial justification test as encompassing two lines of
inquiry: one directed towards the government’s original
action, and the other towards the government’s litigation
10 IBRAHIM V. USDHS

position defending that action. See, e.g., Gutierrez v.
Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001). But it
remains true that the test is an inclusive one; it is the
government’s position “as a whole” that must have “a
reasonable basis in fact and law.” Id. at 1261. 4

Citing our decisions in Shafer v. Astrue, 518 F.3d 1067,
1071 (9th Cir. 2008), and Li v. Keisler, 505 F.3d 913, 918
(9th Cir. 2007), the court below concluded “[t]he
government must show that its position was substantially
justified at each stage of the proceedings in order to avoid an
award of EAJA fees.” It went on to invoke our decision in
Corbin v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998), for the
proposition that in exceedingly complex cases, a court may
appropriately determine whether the government was
substantially justified at each “stage” of the litigation and
make a fee award apportioned to those separate
determinations. It accordingly disallowed fees for discrete
positions 5 taken by the government because, in its view, the
government’s positions in each instance were substantially
justified. It was error to do so.

In Jean, 496 U.S. at 161–62, the Supreme Court broadly
pronounced that the EAJA “favors treating a case as an
4
And though we have held generally that “a reasonable litigation
position does not establish substantial justification in the face of a clearly
unjustified underlying action,” we have declined to adopt a per se rule
foreclosing that possibility. United States v. Marolf, 277 F.3d 1156,
1163–64 and n.5 (9th Cir. 2002). We have likewise left open the
possibility that reasonable underlying conduct may not be sufficient
grounds to preclude a fee award in the face of otherwise unreasonable
litigation tactics. Id.

5
As noted, these include the government’s pre-Ibrahim II standing
assertions, the government’s defense of its revocation of Ibrahim’s visa,
as well as the government’s privilege assertions.
 IBRAHIM V. USDHS 11

inclusive whole, rather than as atomized line-items.” Noting
section 2412(d)(2)(D)’s use of the term “position” in the
singular coupled with Congress’s “emphasis on the
underlying Government action,” the Court concluded the
EAJA substantial justification determination acted as a “one-
time threshold for fee eligibility.” Id. at 159–60 and n.7.
Accordingly, the Jean Court rejected petitioners’ argument
that the court was required to make two substantial
justification determinations: one as to respondents’ fees for
time and expenses incurred in applying for fees, and another
as to fees in the litigation itself. Id. at 157.

Jean, then, we think is clear: courts are to make but one
substantial justification determination on the case as a
whole. That is not to say a court may not consider the
government’s success at various stages of the litigation when
making that inquiry, but those separate points of focus must
be made as individual inquiries collectively shedding light
on the government’s conduct on the whole, rather than as
distinct stages considered in isolation. Indeed in United
States v. Rubin, 97 F.3d 373, 375–76 (9th Cir. 1996), we
affirmed a district court’s treating the case as a whole in
disallowing fees although there was some indication at least
part of the government’s conduct was not substantially
justified. In doing so, we cited favorably to Jean’s
recognition that the EAJA favors treating the case as an
“inclusive whole.” Id. at 375 (quoting Jean, 496 U.S. at 161–
62).

We are aware our sister courts have adopted contrary
views in this regard. The D.C. Circuit, for instance, has
rejected a reading of Jean that would preclude a claim-by-
claim determination on the ground that such a rule would
render the EAJA a “virtual nullity” because government
conduct is nearly always grouped with or part of some
12 IBRAHIM V. USDHS

greater, and presumably justified, action. Air Trans. Ass’n v.
F.A.A., 156 F.3d 1329, 1332 (D.C. Cir. 1998). In the same
vein, the Seventh Circuit has cautioned against taking
“judicial language out of context,” reasoning that Jean “does
not address the question whether allocation is permissible
under the [EAJA]” to allow fees for the part of the
government’s case that was not substantially justified.
Gatimi v. Holder, 606 F.3d 344, 350 (7th Cir. 2010). 6

We do not share the fear, however, that a single-inquiry
rule will render the EAJA “a virtual nullity.” Air Trans.
Ass’n, 156 F.3d at 1332. The possibility that an evaluation
of the government’s conduct can be so “‘holistic,’” id., so as
to preclude a finding that the government was ever without
substantial justification surely exists,7 but such an
application would run afoul of the basic principle that courts
interpret and apply statutes “in light of the overall purpose
and structure of the whole statutory scheme.” United States
v. Neal, 776 F.3d 645, 652 (9th Cir. 2015).

Nor are we concerned that a single-inquiry rule would
disallow the recovery of fees even where the government
may have been unjustified at certain stages or in discrete
positions it took throughout the lifetime of the case. As the
6
Some circuits, like the Third Circuit, have required district courts to
“evaluate every significant argument made by an agency” in order to
permit an appellate court “to review a district court’s decision and
determine whether, as a whole, the Government’s position was
substantially justified.” Hanover Potato Prods., Inc. v. Shalala, 989 F.2d
123, 131 (3d Cir. 1993).

7
Because, on a general level, almost all government action is carried
out through authorized avenues pursuant to some legitimate purpose.
Analyzed at that bird’s-eye level, it is true that almost all government
action is “usually substantially justified.” Air Trans. Ass’n, 156 F.3d at
1332.
 IBRAHIM V. USDHS 13

Supreme Court has noted, “substantially justified” in this
context only requires justification “to a degree that could
satisfy a reasonable person.” Pierce v. Underwood, 487 U.S.
552, 565 (1988). That formulation implicitly permits the
government some leeway, so long as its conduct on the
whole remained justified. Whether those portions of the case
on which the government was not substantially justified are
sufficient to warrant fee shifting on the case as a whole is a
question left to the evaluating court’s discretion. But that a
situation may arise where a court may deny a prevailing
party fees even though the government was not substantially
justified as to every position it took does not trouble us. Such
a result seems expressly contemplated by the EAJA’s use of
the qualifying term “substantial” rather than “total” or
“complete.” 28 U.S.C. § 2412(d)(1)(A).

What’s more, “[a]voiding an interpretation that ensures
that the fee application will spawn a second litigation of
significant dimension is central to Supreme Court
jurisprudence on fee-shifting statutes.” Hardisty v. Astrue,
592 F.3d 1072, 1078 (9th Cir. 2010) (internal punctuation
omitted) (quoting Tex. State Teachers Ass’n v. Garland
Indep. Sch. Dist., 489 U.S. 782, 791 (1989)). An approach
permissive of separate substantial justification inquiries runs
afoul of that interpretive paradigm.

Nor do we see any conflict with our decisions in Corbin,
149 F.3d at 1053, or its progeny in which we have upheld
EAJA fee awards in the social security context where the
award was apportioned to each successive stage of the
litigation. As we noted in Corbin, following the Supreme
Court’s decision in Shalala v. Schaefer, 509 U.S. 292
14 IBRAHIM V. USDHS

(1993), 8 “it became possible for a [social security] claimant
to be deemed a ‘prevailing party’ for EAJA purposes prior
to the ultimate disposition of his disability claim.” Corbin,
149 F.3d at 1053. As a result, we shifted focus from
“considering only [whether the government was
substantially justified as to] the ultimate issue of disability to
considering the justification of the government’s position at
the discrete stage in question.” Id. We have never applied
Corbin outside of the social security context, nor do we see
any reason to extend it to a case like this one where there was
no possibility Ibrahim could be considered a prevailing party
prior to the ultimate resolution of her claims.

In sum, courts assessing whether the government’s
position under the EAJA was substantially justified should
engage in a single inquiry focused on the government’s
conduct in the case as a whole. We therefore hold the district
court erred in disallowing fees relating to discrete litigation
positions taken by the government.

8
At issue in Schaefer was the point at which the EAJA’s 30-day clock
for a fee application begins to run following a successful social security
appeal after the district court makes a sentence-four remand under
42 U.S.C. § 405(g) but fails to enter a final judgment. 509 U.S. at 294–
95. The Supreme Court held that under such facts, the time for a fee
application does not expire while the district court’s order remains
appealable, and in light of the absence of a final judgment, such orders
remain appealable even through the remanded proceedings, therefore
making a post-remand EAJA application timely. Id. at 303. The Supreme
Court noted, however, that it was error for the district court to fail to
enter a final judgment upon the sentence-four remand. Id. at 300–01.
Schaefer’s upshot, therefore, was that sentence-four remands were to be
accompanied by final judgments, which in turn, would require EAJA fee
applications to be filed before the proceedings on remand were
concluded.
 IBRAHIM V. USDHS 15

B.

We next address Ibrahim’s assertion that the district
court erred in failing to find the government acted in bad
faith and by consequently imposing the EAJA’s hourly rate
cap on the majority of her recoverable hours. 9

The EAJA mandates that the “United States . . . be liable
for such fees and expenses to the same extent that any other
party would be liable under the common law.” 28 U.S.C.
§ 2412(b). The common law permits a court to assess
attorney’s fees against a losing party that has “acted in bad
faith, vexatiously, wantonly, or for oppressive reasons.”
Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991). We
hold the government to the same standard under the EAJA,
Rodriguez, 542 F.3d at 709, and a finding that the
government acted in bad faith permits a market-rate recovery
of attorney’s fees, Brown v. Sullivan, 916 F.2d 492, 495 (9th
Cir. 1990).

“Under the common law, a finding of bad faith is
warranted where an attorney knowingly or recklessly raises
a frivolous argument, or argues a meritorious claim for the
purpose of harassing an opponent.” Rodriguez, 542 F.3d at
709 (internal punctuation omitted) (internal quotation marks
omitted) (quoting Primus Auto. Fin. Servs., Inc. v. Batarse,
115 F.3d 644, 649 (9th Cir. 1997)). “Mere recklessness does
not alone constitute bad faith; rather, an award of attorney’s
fees is justified when reckless conduct is combined with an
additional factor such as frivolousness, harassment, or an
improper purpose.” Id. (internal quotation marks omitted)

9
The district court permitted an upward departure for attorney James
McManis due to his distinctive knowledge and skills.
16 IBRAHIM V. USDHS

(quoting Fink v. Gomez, 239 F.3d 989, 993–94 (9th Cir.
2001)).

Ibrahim raises several arguments in support of her
contention that the government acted in bad faith both in the
conduct leading to and during this action. She first argues
that the “Government’s refusal to acknowledge and
permanently correct the injustice to Ibrahim, and its apparent
lack of concern that others may have suffered harm from
similar errors, show bad faith from the inception of this
case.” Her next contention focuses on the government’s
raising of its standing defense after our decision in Ibrahim
II, in which we held Ibrahim had Article III standing to
pursue her claims. 669 F.3d at 994. She also claims the
government’s invocation of the state secrets privilege was
made in bad faith and analogizes the government’s conduct
here with that in Limone v. United States, 815 F. Supp. 2d
393 (D. Mass. 2011). Ibrahim further alleges the government
barred her and her daughter from entering the United States
in an effort to prevent them from offering testimony at trial.
And lastly, Ibrahim insists the district court clearly erred by
failing to review the record in its entirety, and instead
“examin[ed] examples of bad conduct in isolation and
conclud[ed] each one individually did not show bad faith,
rather than examining the totality of the circumstances.”

We review the district court’s bad faith findings for clear
error. Rodriguez, 542 F.3d at 709. “A finding is clearly
erroneous if it is ‘(1) ‘illogical’, (2) ‘implausible’, or
(3) without ‘support in inferences that may be drawn from
the facts in the record.’’” Crittenden v. Chappell, 804 F.3d
998, 1012 (9th Cir. 2015) (quoting United States v. Hinkson,
585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)). “In applying
the clearly erroneous standard to the findings of a district
court sitting without a jury, [an] appellate court[] must
 IBRAHIM V. USDHS 17

constantly have in mind that their function is not to decide
factual issues de novo,” even where it is “convinced that had
it been sitting as the trier of fact, it would have weighed the
evidence differently.” Anderson v. City of Bessemer City,
470 U.S. 564, 573–74 (1985). “If the district court’s account
of the evidence is plausible in light of the record viewed in
its entirety,” we must affirm. Id. We find that the district
court’s account of the evidence is plausible in the light of the
record, and therefore affirm.

Respecting Ibrahim’s first argument, it appears she is
making two distinct claims: first, that the government
wrongly placed her on its watchlists and therefore acted in
bad faith, and second, that its defense of such placement was
bad faith because it knew its conduct was wrongful. Both
contentions are unavailing.

The district court found that at the time the government
placed Ibrahim on its watchlists, including the No-Fly List,
there existed “no uniform standard for [watchlist]
nominations.” It was not until after this suit was instituted
that the government adopted the “reasonable suspicion”
standard for placement on its watchlists. And although the
government admits that Ibrahim did not meet that standard
at the time of her placement, that fact alone is insufficient to
reverse the district court here. The district court expressly
declined to find that the government’s initial interest in
Ibrahim was due to her race, religion or ethnicity. 10 Absent
evidence Ibrahim’s inclusion on the watchlists was
otherwise improper, it was not clearly erroneous for the
district court to find the government’s underlying placement
of Ibrahim on its watchlists did not constitute bad faith.

10
A finding Ibrahim does not challenge on appeal.
18 IBRAHIM V. USDHS

Nor was the government’s defense of its partially
mistaken placement bad faith. Prior to this suit no court had
held a foreign national such as Ibrahim possessed any right
to challenge their placement—mistaken or not—on the
government’s terrorism watchlists. It accordingly could not
have been bad faith to assert, as the government did, that
Ibrahim possessed no such right. And more importantly, it is
not true that the government defended, as Ibrahim claims, its
placing her on the No-Fly List. At the time this action was
instituted in early 2006, the government had already
removed Ibrahim from the No-Fly List more than a year
prior, and, with one exception, the lists on which she did
appear at that time were the same lists on which the
nominating agent had intended she be placed. 11 Therefore,
to the extent the government defended Ibrahim’s placement
on those lists, no colorable argument can be made such a
defense was frivolous or made with improper purpose. 12

11
The district court found the nominating agent had intended to place
Ibrahim within the Consular Lookout and Support System (“CLASS”)
List, the TSA Selectee List, the TUSCAN List, and the TACTICS List,
but instead placed Ibrahim on the No-Fly List and the Interagency Border
Information System (“IBIS”) database. While the district court found the
government removed Ibrahim from the No-Fly List in January 2005, it
also found she remained on the Selectee List and CLASS Lists at that
time. It found that in December 2005, she was removed from the Selectee
List, but added to the TUSCAN List and TACTICS List. Thus, when this
action was instituted, she was on the CLASS, TACTICS and TUSCAN
Lists, which were, as the district court found, the same lists on which the
nominating agent had intended she be placed. The district court made no
finding, however, whether Ibrahim was ever removed from the IBIS
database.

12
That the government would later determine Ibrahim did not meet
the reasonable suspicion standard, which was adopted subsequent to
Ibrahim’s nomination to the lists, and remove her from its watchlists is
 IBRAHIM V. USDHS 19

The same can be said with respect to the government’s
raising of the standing defense after our decision in Ibrahim
II. Ibrahim fails to point to any evidence indicating the
government reraised standing as a defense at summary
judgment and trial with vexatious purpose. What’s more, the
government correctly points out that there was at minimum
a colorable argument that the different procedural phases of
the case rendered their subsequent standing motions
nonfrivolous.

Ibrahim’s claim that the government’s privilege
assertions were made in bad faith is also unconvincing. As
the district court noted, the government was successful on
many of its privilege assertions, and on that basis it declined
to find the government’s invocation of privilege was
frivolous. Ibrahim likens the government’s conduct in this
case with that in Limone v. United States, where a
Massachusetts district court found the government had acted
in bad faith by “block[ing] access to the relevant
documents,” and “hiding behind specious procedural
arguments,” which “culminat[ed] in a frivolous interlocutory
appeal.” 815 F. Supp. 2d at 398. The conduct in Limone
included a refusal to disclose relevant information, even in
camera, until ordered by the court to do so. Id. Ibrahim sees
similar conduct in this case through the government’s refusal
to produce basic information without a court order, its
objections to questions at depositions, and its objections to
discussing publicly available information.

of no relevance. Ibrahim did not possess—nor did the district court find
her to possess—a right to challenge the substantive basis for her
placement on the government’s watchlists. The district court’s relief was
explicitly limited to the government’s post-deprivation procedural
shortcomings and expressly disavowed “[a]ny other rule requiring
reviewability before concrete adverse action.”
20 IBRAHIM V. USDHS

But Ibrahim forgets that the government was ultimately
successful on at least some of its privilege assertions, and
absent evidence, of which Ibrahim has pointed to none, that
the government’s assertions on those unsuccessful occasions
were frivolous or made with improper purpose, it could not
have been clear error to decline to find the government acted
in bad faith. Nor was the government’s action here
analogous to that in Limone where it had refused to grant its
own lawyers access to the allegedly privileged documents
which resulted in counsel’s inability to respond to discovery
motions and court orders for nearly two years. See id. at 398,
408. There is nothing similar in this case.

Nor is there any evidence in the record demonstrating the
government prevented Ibrahim from entering the United
States to offer testimony in this suit, and with respect to her
daughter, Ibrahim fails to explain why there was any error in
the district court’s determination that the government’s
initial refusal to allow her into the country was anything but
a mistake, and a quickly corrected one at that. The district
court’s findings here were not clearly erroneous.

Lastly, Ibrahim’s argument that the district court erred
by making piecemeal bad faith determinations is
unpersuasive. Her sole authority on point is our decision in
McQuiston v. Marsh, 707 F.2d 1082, 1086 (9th Cir. 1983),
superseded by statute as recognized by Melkonyan v.
Sullivan, 501 U.S. 89, 96 (1991), where we made the
unremarkable observation that “[b]ad faith may be found
either in the action that led to the lawsuit or in the conduct
of the litigation.” She fails, however, to point to any case
where we have elevated that observation to edict. Rather, we
have consistently required fee awards based on bad faith to
be “traceable” to the conduct in question. See, e.g.,
Rodriguez, 542 F.3d at 713. It was therefore proper for the
 IBRAHIM V. USDHS 21

district court to consider each claimed instance of bad faith
in order to determine whether the associated fees should be
subject to a market-rate increase.

III.

We turn to the district court’s fee reductions imposed in
accordance with the Supreme Court’s decision in Hensley,
461 U.S. 424.

Though a prevailing party may be eligible for fees under
the EAJA, 13 “[i]t remains for the district court to determine
what fee is ‘reasonable.’” Id. at 433. And as the Supreme
Court noted, and we have often repeated, “the most useful
starting point for determining the amount of a reasonable fee
is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Schwarz v. Sec. of
Health & Human Servs., 73 F.3d 895, 901 (9th Cir. 1995)
(internal punctuation omitted) (quoting Hensley, 461 U.S. at
433). In the case of fees sought under the EAJA, the
“reasonable hourly rate” is capped by the EAJA itself.
28 U.S.C. § 2412(d)(2)(A). Thus, the equation for
determining the reasonable amount of fees awardable in
cases such as this is the number of hours reasonably
expended multiplied by the applicable EAJA rates. The
resulting figure—the lodestar figure—forms the basis for the
remainder of the Hensley determination.

13
Though Hensley addressed fees in the context of the Civil Rights
Attorney’s Fees Act of 1976, 42 U.S.C. § 1988, the Court went on to
hold in Jean that the assessment of reasonable fees under the EAJA is
“essentially the same.” 496 U.S. at 160–61. We have since applied
Hensley to EAJA fee awards. See, e.g., Atkins v. Apfel, 154 F.3d 986,
989–90 (9th Cir. 1998).
22 IBRAHIM V. USDHS

But where a plaintiff has only achieved limited success,
not all hours expended on the litigation are eligible for
inclusion in the lodestar, and even those that are eligible may
be subject to a discretionary reduction. Hensley, 461 U.S. at
436; Schwarz, 73 F.3d at 901. Thus, under Hensley we have
required district courts to follow a two-step process where a
plaintiff’s success is limited: first, the court must determine
whether the claims upon which the plaintiff prevailed are
related to the unsuccessful claims. Webb v. Sloan, 330 F.3d
1158, 1168 (9th Cir. 2003). That inquiry rests on whether the
“related claims involve a common core of facts or are based
on related legal theories.” Id. Time spent on unsuccessful
claims the court deems related are to be included in the
lodestar, while “[h]ours expended on unrelated,
unsuccessful claims should not be included” to the extent
those hours can be “isolated.” Id. at 1168, 1169. Thus, in
addition to time reasonably spent on successful claims,
potentially recoverable under Hensley are those hours
expended on related but unsuccessful claims as well as those
hours pertaining to unrelated, unsuccessful claims that
cannot be severed cleanly from the whole.

Second, a court must consider “whether ‘the plaintiff
achieved a level of success that makes the hours reasonably
expended a satisfactory basis for making a fee award.’”
Sorenson, 239 F.3d at 1147 (internal punctuation omitted)
(quoting Hensley, 461 U.S. at 434). 14 Here, “a district court
‘should focus on the significance of the overall relief

14
If the district court finds that a plaintiff was wholly successful, it
must still evaluate whether the degree of success obtained justifies an
award based on the number of hours reasonably expended, whereas a
“limited success” finding necessitates the intermediary step of
determining which claims were related or unrelated before weighing the
degree of success obtained against the total number of hours reasonably
expended.
 IBRAHIM V. USDHS 23

obtained by the plaintiff in relation to the hours reasonably
expended on the litigation.’” Id. (quoting Hensley, 461 U.S.
at 435).

If the court concludes the prevailing party achieved
“excellent results,” it may permit a full fee award—that is,
the entirety of those hours reasonably expended on both the
prevailing and unsuccessful but related claims. Hensley,
461 U.S. at 435; Schwarz, 73 F.3d at 905–06. On the other
hand, where a plaintiff has not achieved results warranting a
fully recoverable fee, the district court may apply a
downward adjustment to the lodestar by “award[ing] only
that amount of fees that is reasonable in relation to the results
obtained.” 15 Hensley, 461 U.S. at 440.

Ibrahim was successful below on her procedural due
process claim. The district court, however, expressly refused
to reach her remaining claims—which included her
substantive due process, equal protection, First Amendment,
and Administrative Procedure Act claims because “those
arguments, even if successful, would not lead to any greater
relief than already ordered.” It accordingly treated those
claims as having been unsuccessful.

It awarded full fees and expenses for those hours
Ibrahim’s counsel incurred litigating her procedural due
process claim. Because it found that her unsuccessful
substantive due process and Administrative Procedure Act
claims were related to her successful claim, it also awarded
fees and expenses incurred prosecuting those claims. It
declined to make any award for those fees and expenses

15
It is at this step for instance that district courts apply a reduction for
the inclusion of hours associated with unrelated, unsuccessful claims that
could not be easily segregated. Webb, 330 F.3d at 1169.
24 IBRAHIM V. USDHS

associated with Ibrahim’s First Amendment and equal
protection claims because they “were not related to the
procedural due process claim (for which [Ibrahim] received
relief) because they involve different evidence, different
theories, and arose from a different alleged course of
conduct.”

Ibrahim attacks the district court’s Hensley reductions on
two grounds: first, she contends it was error to conclude her
First Amendment and equal protection claims were
unrelated to her successful procedural due process claim.
Second, she argues the “excellent results” she obtained in
this litigation support a fully compensable fee. We reject
both assertions.

We review a district court’s award of fees under Hensley
for abuse of discretion, including its ruling that a party
achieved only limited success, Thomas v. City of Tacoma,
410 F.3d 644, 649 (9th Cir. 2005), as well as its finding that
unsuccessful claims are unrelated to the claims upon which
a plaintiff prevailed, Schwarz, 73 F.3d at 902. Unrelated
claims are those that are both factually and legally distinct.
Webb, 330 F.3d at 1168. In Schwarz, we observed “the test
[for the factual relatedness of claims] is whether relief
sought on the unsuccessful claim is intended to remedy a
course of conduct entirely distinct and separate from the
course of conduct that gave rise to the injury on which the
relief [is] granted.” 73 F.3d at 903 (internal quotation marks
omitted) (quoting Thorne v. City of El Segundo, 802 F.2d
1131, 1141 (9th Cir. 1986)). Thus, “the focus is to be on
whether the unsuccessful and successful claims arose out of
the same course of conduct,” or as the Supreme Court put it:
the same “common core.” Id. (internal quotation marks
omitted); Hensley, 461 U.S. at 435. “If they didn’t, they are
unrelated.” Schwarz, 73 F.3d at 903.
 IBRAHIM V. USDHS 25

The test does not require that the facts underlying the
claims be identical. The concept of a “common core” or
“common course of conduct” is permissive of the incidental
factual differences underlying distinct legal theories. Were
that not the case, rare would be the occasion where legally
distinct claims would qualify as related under Hensley. But
it remains true that the work done on the unsuccessful claims
must have contributed to the ultimate result achieved.
Hensley, 461 U.S. at 435; Schwarz, 73 F.3d at 904.

The court below disallowed fees for Ibrahim’s First
Amendment and equal protection claims because they were
based on different legal theories, evidence, and “alleged”
courses of conduct. Ibrahim contends that reasoning was
erroneous and in support cites Webb, 330 F.3d 1158, where
we addressed an EAJA fee award arising out of a suit for
false arrest, malicious prosecution, and false imprisonment.
There we found that the “common course of conduct” was
the plaintiff’s “arrest, detention, and prosecution.” Id. at
1169. In light of that formulation, we noted that the
plaintiff’s unsuccessful false arrest claim was
“unquestionably” related to his successful false
imprisonment and malicious prosecution claims because
they each sprang from that same underlying conduct. Id. We
therefore concluded that work done on the plaintiff’s
unsuccessful false imprisonment claim “could have
contributed to the final result achieved” and accordingly
treated such work as being related for Hensley purposes. Id.

What Ibrahim misses—and what distinguishes this case
from Webb—is the mutually exclusive nature of the claims
presented here. As a predicate to the Webb plaintiff’s false
imprisonment claim, the plaintiff had to be arrested. Work
done investigating and developing the factual record on the
false arrest claim would therefore necessarily further the
26 IBRAHIM V. USDHS

plaintiff’s successful false imprisonment claim. Likewise,
the plaintiff’s malicious prosecution claim was inextricably
tied to the prosecutor’s state of mind in bringing the spurious
charges, which in turn was heavily reliant on what the
prosecutor knew about the circumstances surrounding
plaintiff’s arrest. Most work attributable to the plaintiff’s
false arrest claim, therefore, likely also contributed to the
plaintiff’s successful claims.

The same cannot be said for Ibrahim’s claims. In light of
the district court’s findings, Ibrahim’s First Amendment and
equal protections claims were mutually exclusive with her
procedural due process claims. That is, if the government
negligently placed Ibrahim on its watchlists because it failed
to properly fill out a form, then it could not at the same time
have intentionally placed Ibrahim on the list based on
constitutionally protected attributes Ibrahim possesses, and
vice versa. 16 These mental states are mutually exclusive.
Therefore, it was not an abuse of discretion to find that
Ibrahim’s unsuccessful claims were unrelated, because
although the work done on those claims could have
contributed to her ultimately successful claim, the facts and
legal theories underlying Ibrahim’s claims make that result
unlikely.

We note our prior decisions in this sphere are somewhat
opaque. In Schwarz, we detailed our previous decisions’
shifting focus on the degree to which the unsuccessful and
successful claims arose out of the same common course of
conduct and the degree to which the work done on
unsuccessful claims contributed to the results achieved.

16
The district court expressly declined to find that the government’s
initial interest in Ibrahim was due to her nationality or her religious
beliefs. Ibrahim does not challenge that conclusion before this Court.
 IBRAHIM V. USDHS 27

73 F.3d at 903 (citing Thorne, 802 F.2d at 1141; Outdoor
Sys., Inc. v. City of Mesa, 997 F.2d 604, 619 (9th Cir. 1993);
Herrington v. Cty. of Sonoma, 883 F.2d 739, 747 (9th Cir.
1989); Cabrales v. Cty. of Los Angeles, 935 F.2d 1050, 1052
(9th Cir. 1991); and O’Neal v. City of Seattle, 66 F.3d 1064,
1068–69 (9th Cir. 1995)). Ultimately in Schwarz, we
affirmed the district court’s decision to reduce the lodestar
for work done on unsuccessful claims both because the sets
of claims there were both factually and legally dissimilar and
because the efforts spent on the unsuccessful claims did not
contribute to the plaintiff’s success. Id. at 904. Nevertheless
in Webb, we characterized our decision in Schwarz as
“reaffirm[ing] that the focus is on whether the claims arose
out of a common course of conduct.” 330 F.3d at 1169. Here,
Ibrahim’s First Amendment and equal protection claims
were based on her allegations that the government
intentionally put her name on the lists based on
constitutionally protected attributes, while her procedural
due process claims were based on her allegations that the
government failed to provide adequate procedures to remove
her name from its lists. Accordingly, the district court did
not err in concluding that these claims were based on both
different alleged courses of conduct and different legal
theories. Further, in light of our decisions on the matter, we
likewise believe it cannot be error for a district court to also
consider—as the court below did—that efforts on
unsuccessful claims did not contribute to the success
obtained.

In addition, even if it were the case that Ibrahim’s
unsuccessful claims arose out of the same factual context as
her successful claim, it is not true that the work expended on
those claims necessarily contributed to her ultimate success.
We therefore decline to find the district court abused its
28 IBRAHIM V. USDHS

discretion by concluding Ibrahim was ineligible to recover
fees for work on those claims.

We also reject Ibrahim’s second contention that the
“excellent results” she obtained should entitle her to a fully
compensatory fee. The district court permitted Ibrahim to
recover fully for her Administrative Procedure Act and
substantive due process claims because, though
unsuccessful, they were related to her procedural due
process claim. However, in doing so, it made no explicit
mention of “excellent results,” though such a recovery by
necessity implies an “excellent results” finding. See
Schwarz, 73 F.3d at 905–06. And in light of our affirmance
of the district court’s ruling with respect to Ibrahim’s First
Amendment and equal protection claims, a ruling that
Ibrahim also obtained excellent results on two of her four
claims would have no effect on her potentially recoverable
fee award.

We find unconvincing, however, the government’s
contention that the district court’s overall fee reduction—
including its EAJA reductions—should be affirmed because
the district court could have imposed such a reduction under
Hensley’s second step. The government claims that any
errors contained in the district court’s EAJA application and
relatedness findings is harmless. The government, however,
forgets that although the district court enjoys substantial
discretion in fixing an appropriate fee under Hensley, we
have imposed the modest requirement that it “explain how it
came up with the amount.” Moreno v. City of Sacramento,
534 F.3d 1106, 1111 (9th Cir. 2008). “The explanation need
not be elaborate, but it must be comprehensible . . . [T]he
explanation must be concise but clear.” Id. (internal
quotation marks omitted) (quoting Hensley, 461 U.S. at
437). Where the difference between the fee award requested
 IBRAHIM V. USDHS 29

and the fee award granted is negligible, “a somewhat cursory
explanation will suffice,” but where the disparity is greater,
“a more specific articulation of the court’s reasoning is
expected.” Id. Whatever the actual basis for the district
court’s reductions here, there is certainly no room for
argument that it clearly and concisely explained that its
reductions to Ibrahim’s fee award were justified in light of
the success she obtained. Absent such an explanation from
the district court, we cannot take a rough justice approach
and sua sponte decide that the district court’s mistaken fee
reductions would be equivalent to the fee reductions it would
have made at Hensley’s second step.

IV.

Following its fee entitlement determination, the district
court appointed a special master to fix Ibrahim’s fee award. 17
The special master went on to recommend a number of
discretionary reductions to Ibrahim’s fee request due to
block-billing, vagueness, and lack of billing judgment. The
special master also made reductions for failure to
demonstrate that the work claimed was associated with
recoverable claims or issues. The district court adopted these
reductions. It also struck Ibrahim’s objections to the special
master’s report and recommendation on expenses for failure
to follow page limits.

Because the reductions recommended by the special
master and adopted by the district court were largely rooted
in the district court’s EAJA determination, we agree with
Ibrahim that those findings should be revisited if the district
court once more determines Ibrahim is entitled to fees.

17
Though Ibrahim objected to the special master’s appointment, she
does not press that issue on appeal.
30 IBRAHIM V. USDHS

Ibrahim’s contention that the district court abused its
discretion in striking her objections to the special master’s
report and recommendation on expenses, however, is
unavailing.

In its order appointing the special master, the district
court also ordered the special master to file a report and
recommendation regarding fees and expenses, and imposed
a ten-page limit on the parties’ objections to that report and
recommendation. It further required each party to file an
appendix of all relevant communication with the special
master.

The special master, however, filed two reports and
recommendations, one focusing on fees and the other on
expenses. In response, Ibrahim filed a ten-page set of
objections to each, along with a one-page “statement.”

The district court struck Ibrahim’s objections to the
special master’s report and recommendation on expenses for
having filed “two ten-page briefs, a 234-page declaration
with exhibits, and a one-page ‘statement,’” without also
moving for a page extension. It found her filings were not
good faith attempts to abide by its orders.

On appeal Ibrahim argues it was improper to strike her
objections because the special master filed two reports and
recommendations, and, therefore, it was reasonable to file a
ten-page set of objections to each. 18 She alternatively argues

18
Ibrahim also argues that the district court’s striking of her expenses
resulted only in those objections being “overruled.” That assertion is
patently contradicted by the record. In its order striking Ibrahim’s
objections, the district court stated: “No objections to the special
master’s report regarding expenses are preserved because counsel failed
to abide by the rules.”
 IBRAHIM V. USDHS 31

that the district court’s imposition of a ten-page limit on
objections to reports and recommendations totaling
hundreds of pages was also an abuse of discretion.

District courts have the inherent power to strike items
from their docket for litigation conduct. Ready Transp., Inc.
v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (citing
Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th Cir.
1998)). We review the exercise of that power for abuse of
discretion and the factual determinations underpinning such
exercise for clear error. Id. at 404; Unigard Sec. Ins. Co. v.
Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 367 (9th Cir.
1992).

Here, it was not clearly erroneous to conclude Ibrahim
failed to abide by the district court’s page limits. While it is
true that the special master filed two reports and
recommendations and the district court’s order might have
been misinterpreted or misunderstood by plaintiff’s counsel,
it is also true that the order stated “all objections” should not
exceed ten pages. Thus, whether the special master filed a
single or several reports and recommendations, the district
court’s order imposed a ten-page limit on objections. Indeed,
the government restricted its objections to ten pages. We
therefore cannot find that it was clearly erroneous to
conclude Ibrahim failed to abide by the district court’s page
restrictions.

Nor do we see the striking of Ibrahim’s objections in
response to that failure as being an abuse of discretion. The
order in question also required Ibrahim to resubmit her fee
request and imposed requirements on that resubmission in
order to facilitate the district court’s efforts to fix her award.

Ibrahim obstinately refused to abide by those
requirements, and instead, filed multiple motions to
32 IBRAHIM V. USDHS

reconsider the district court’s fee entitlement
determinations. 19 In light of Ibrahim’s repeated failures to
follow the very same order, we cannot conclude the district
court abused its discretion by striking her objections to the
special mater’s report on expenses.

Finally, we refuse to address Ibrahim’s contention that it
was an abuse of discretion to limit her objections to ten
pages. Where a party believes a district court has issued an
improper order, their remedy is to raise that issue on appeal.
United States v. Galin, 222 F.3d 1123, 1127 (9th Cir. 2000).
In the meantime, however, they are to either abide by the
order, file an interlocutory appeal, if available, or move for
reconsideration. Id. Ibrahim did none of those things. Rather,
she simply exceeded the district court’s page limits while
“objecting” to those selfsame limits in a footnote. A party
will not be heard to complain of an order on appeal by which
it failed to abide. We therefore do not reach the merits of
Ibrahim’s claim here.

V.

Any fee dispute is tedious, and this one is no exception.
Though we are reluctant to require the district court to revisit
its findings in this already protracted satellite litigation, we

19
Ibrahim offered multiple rationales for her refusal to follow the
district court’s order that she resubmit her fee request. Initially, she
argued that counsel had previously been awarded fees based on similar
billing records. She also argued she would be unable to categorize
projects in the manner directed by the district court because “that is not
the way the time was recorded or billed.” At oral argument, however, she
argued she could not comply with the district court’s order because it
was predicated on legally erroneous conclusions. We find none of these
rationales persuasive because Ibrahim, in the end, failed to comport with
the order.
 IBRAHIM V. USDHS 33

see no other alternative. We pause to note, however, that we
offer no view on the appropriateness of the amount already
awarded by the district court in this case. It may well be
Ibrahim is entitled to substantially more or substantially less
than that amount. But until an amount is fixed in accordance
with applicable law, we are unable to pass upon that
question.

The present panel will retain responsibility for any
appeals that may possibly emanate from an appealable order
or judgment of the district court resulting from this remand.
The fee and expense awards of the district court are
AFFIRMED in part, REVERSED in part, and
REMANDED for proceedings consistent with this opinion.