Adolph Michelin v. Warden Moshannon Valley Correctional Center

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 24-2990 and 24-3198

ADOLPH MICHELIN

v.

WARDEN MOSHANNON VALLEY CORRECTIONAL

CENTER; DIRECTOR PHILADELPHIA FIELD OFFICE

IMMIGRATION AND CUSTOMS ENFORCEMENT;

DIRECTOR UNITED STATES IMMIGRATION AND

CUSTOMS

ENFORCEMENT; SECRETARY UNITED STATES

DEPARTMENT OF HOMELAND SECURITY;

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Appellants in case 24-2990

ADEWUMI ABIOYE

v.

WARDEN MOSHANNON VALLEY PROCESSING

CENTER; ACTING FIELD OFFICE DIRECTOR OF THE

IMMIGRATION and CUSTOMS ENFORCEMENT and

REMOVAL OPERATIONS PHILADELPHIA FIELD

OFFICE; SECRETARY UNITED STATES DEPARTMENT

OF HOMELAND SECURITY;

ATTORNEY GENERAL UNITED STATES,

Appellants in case 24-3198

Appeal from the United States District Court

for the Western District of Pennsylvania

(District Court Nos. 3:23-cv-00022 and 3:23-cv-00251)

Magistrate Judges: Honorable Patricia L. Dodge and

Honorable Christopher B. Brown

Argued on November 10, 2025

Before: RESTREPO, McKEE, and AMBRO, Circuit Judges

(Opinion filed: February 2, 2026)

Laura S. Irwin

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Joseph A. McCarter [Argued]

Sarah S. Wilson

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

2

Counsel for Appellants Warden

Moshannon Valley Correctional Center,

Directory Philadelphia Field Office

Immigration and Customs Enforcement,

Director United States Immigration and

Customs Enforcement, Secretary United

States Department of Homeland Security,

Attorney General United States of

America

Casey Corcoran

Robert S. Jones

Andrew Tutt

Kathleen Weng

Arnold & Porter Kaye Scholer

601 Massachusetts Avenue NW

Suite 1121

Washington, DC 20001

Jonah B. Eaton

Nationalities Service Center

1216 Arch Street

4th Floor

Philadelphia, PA 19107

Nicole L. Masiello

William Sharon [Argued]

Arnold & Porter Kaye Scholer

250 W 55th Street

New York, NY 10019

Counsel for Appellees Adolph Michelin

and Adewumi Abioye

3

OPINION OF THE COURT

AMBRO, Circuit Judge

A petition for a writ of habeas corpus has been a civil

action since before our law was our law. In the mid-eighteenth

century, just before our Founding, William Blackstone

observed that the law we were about to inherit had two

“primary objects”: “the establishment of rights, and the

prohibition of wrongs.” 3 William Blackstone, Commentaries

on the Laws of England 1 (1772). There were two types of

wrongs: “private wrongs, and public wrongs.” Id. at 2

(emphasis omitted). Public wrongs, he explained, “are a breach

and violation of public rights and duties, which affect the

whole community considered as a community; and are

distinguished by the harsher appellation of crimes and

misdemeanors.” Id. (emphasis omitted). Private wrongs, by

contrast, “are an infringement or privation of the private or

civil rights belonging to individuals, considered as individuals;

and are thereupon frequently termed civil injuries.” Id.

(emphasis omitted). For public wrongs, the remedy came by a

criminal action. For private wrongs, the remedy required the

“application to . . . courts of justice . . . by civil suit or action.”

Id. at 3.

One civil right, secured by civil action, was that of

“personal liberty.” Id. at 119. When this right was violated, the

prisoner could petition a court to “remov[e] the injury of unjust

and illegal confinement,” id. at 137 (emphasis omitted), by

4

“commanding” whomever held him in custody “to produce the

body” and explain the “cause of his caption and detention,” id.

at 131. And so, in listing the civil actions available for “the

redress of private wrongs,” Blackstone lauded “the most

celebrated writ in the English law,” id. at 129—the “great and

efficacious writ” that would restore the captive to liberty, id. at

131—the writ of habeas corpus.

After we overthrew the English crown, we retained this

framework from English common law. See, e.g., Watson v.

Mercer, 33 U.S. (8 Pet.) 88, 110 (1834) (distinguishing “civil

proceedings[,] which affect private rights,” from “criminal

proceedings[,] which impose punishments”); Bradlie v. Md.

Ins. Co., 37 U.S. (12 Pet.) 378, 402 (1838) (defining

“proceedings of a mere civil nature” as those “to enforce

private rights”). We also retained the recognition that habeas is

a civil action. See Holmes v. Jennison, 39 U.S. (14 Pet.) 540,

565–67 (1840) (holding “it is too plain for argument” that a

petition for a writ of habeas corpus is a civil action under the

Judiciary Act of 1789); Ex parte Tom Tong, 108 U.S. 556, 559–

60 (1883) (“The writ of habeas corpus is the remedy which the

law gives for the enforcement of the civil right of personal

liberty.”).

Much has changed over the centuries. Not this. See, e.g.,

Banister v. Davis, 590 U.S. 504, 507 (2020) (“Habeas

proceedings, for those new to the area, are civil in nature.”).1

1

On the enduring authority of Blackstone’s account of the writ

of habeas corpus, see, e.g., Brown v. Davenport, 596 U.S. 118,

128 (2022); Ex parte Bollman, 8 U.S. (4 Cranch) 75, 97 (1807).

5

Today the Equal Access to Justice Act (EAJA) provides

that the prevailing private party “in any civil action (other than

cases sounding in tort)” brought by or against the United States

is entitled to attorneys’ fees and costs if the Government’s

position was not “substantially justified” or “special

circumstances make an award unjust.” 28 U.S.C. §

2412(d)(1)(A). Adolph “Lee” Michelin and Adewumi Abioye

prevailed in habeas actions under 28 U.S.C. § 2241 challenging

their immigration detentions. The District Courts found the

Government’s positions were not “substantially justified” and

awarded the detainees fees and costs. The main question these

consolidated cases present is whether a petition for a writ of

habeas corpus from immigration detention under § 2241 is an

EAJA “civil action.”

We answer yes and thus affirm.

I. BACKGROUND

We begin with the facts of the two cases.

A. Abioye

Abioye, a Nigerian citizen, entered the United States in

April 2018 on a tourist visa. In July 2020, he pled guilty in the

U.S. District Court for the District of Maryland to conspiracy

to commit wire fraud in violation of 18 U.S.C. §§ 1343 and

1349. In May 2022—the day he completed his sentence—

federal Immigration and Customs Enforcement (ICE) agents

took him into immigration detention at the Moshannon Valley

6

Processing Center.2 An immigration judge ordered him

removed to Nigeria. The next year, the Board of Immigration

Appeals (BIA) affirmed. In June 2023, Abioye petitioned for

review and a stay of removal from the U.S. Court of Appeals

for the Fourth Circuit. It stayed removal pending review of his

petition.

In October 2023, after over 16 months in immigration

detention, Abioye petitioned the U.S. District Court for the

Western District of Pennsylvania for a writ of habeas corpus

under § 2241 challenging his detention without an

individualized bond hearing as a violation of the Fifth

Amendment’s Due Process Clause. The Government opposed

his petition. The next month, the District Court granted the writ

and ordered a bond hearing. In December an immigration

judge released him on a $5,000 bond.

Abioye moved for attorneys’ fees and costs under §

2412(d)(1)(A) of the EAJA. The District Court found the

Government’s position was not substantially justified and

awarded him $18,224.58.

B. Michelin

ICE agents arrested Michelin, a Jamaican citizen, in

January 2022 and detained him at Moshannon. A year later, he

was still detained—and had no bond hearing. Although he had

petitioned the BIA to reopen his immigration case, it had not

responded. So he too petitioned for a writ of habeas corpus

2

From March to August 2023, Abioye was held at the Pike

County Correctional Facility; otherwise, he was held at

Moshannon.

7

under § 2241 from the U.S. District Court for the Western

District of Pennsylvania. It granted his petition, holding his

prolonged detention without an individualized bond hearing

violated the Fifth Amendment’s Due Process Clause. An

immigration judge released Michelin on a $10,000 bond, and

he rejoined his family in Philadelphia.

Michelin sought an award of attorneys’ fees and costs

per the EAJA. The District Court found the Government’s

position not substantially justified and awarded him

$15,841.60.

* * *

The United States appealed both decisions. We

consolidated the appeals.

II. JURISDICTION AND STANDARDS OF REVIEW

We have appellate jurisdiction to review fee awards

under 28 U.S.C. § 1291. Whether we have subject matter

jurisdiction depends on the question at the heart of this appeal:

whether the EAJA waives federal sovereign immunity to fee

awards for habeas actions challenging civil immigration

detention. Our review of legal questions is plenary. Newmark

v. Principi, 283 F.3d 172, 174 (3d Cir. 2002). We review for

abuse of discretion a district court’s finding that the

Government’s position was not substantially justified. Cruz v.

Comm’r of Soc. Sec., 630 F.3d 321, 324 (3d Cir. 2010).

III. DISCUSSION

The EAJA provides:

8

[A] court shall award to a prevailing party other

than the United States fees and other expenses . .

. incurred by that party in any civil action (other

than cases sounding in tort) . . . brought by or

against the United States . . . unless the court

finds that the position of the United States was

substantially justified or that special

circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). These appeals concern whether a

habeas challenge to immigration detention pursuant to § 2241

is a “civil action” under the EAJA. It is. The Abioye appeal also

asks whether the Government’s position in that case was

substantially justified. It was not.

A. The phrase “any civil action (other than cases sounding

tort)” in the EAJA unambiguously encompasses habeas

challenges to immigration detention under § 2241.

The “cardinal canon” of statutory interpretation is the

“presumption that a legislature says in a statute what it means

and means in a statute what it says there.” Conn. Nat’l Bank v.

Germain, 503 U.S. 249, 253–54 (1992) (cleaned up). On

Abioye’s and Michelin’s reading, the EAJA means what it

says: save torts, it covers all civil actions; hence, habeas is

included. To the Government, it does not: the statute could

mean only “purely,” “wholly,” or “garden-variety” civil

actions, Abioye Opening Br. 25; habeas is excluded.

We agree with Abioye and Michelin. Habeas actions are

civil actions. And the complete phrase—“any civil action

(other than cases sounding in tort)”—clearly encompasses

them. We grant the Government this: in some instances, the

9

phrase “civil action” does not cover habeas actions. But those

situations are the exceptions, not the rule. And the EAJA

cannot plausibly be read that way.

1. The sovereign immunity canon applies only if a

statute is ambiguous after deploying the ordinary

tools of statutory interpretation.

Before we go further, we pause to clarify what we are

looking for where, as here, a statute implicates the sovereign

immunity of the federal Government.

Generally, the United States enjoys sovereign immunity

from awards of monetary relief. FDIC v. Meyer, 510 U.S. 471,

475 (1994). However, the Government may waive sovereign

immunity by statute. Kirtz v. Trans Union LLC, 46 F.4th 159,

164 (3d Cir. 2022). “[A] waiver of sovereign immunity must

be ‘unequivocally expressed’ in statutory text.” FAA v. Cooper,

566 U.S. 284, 290 (2012) (quoting Lane v. Peña, 518 U.S. 187,

192 (1996)). Any ambiguity is “to be construed in favor of

immunity,” id. (citing United States v. Williams, 514 U.S. 527,

531 (1995)), whether it concerns the existence of a waiver or

the scope of one, id. at 291. The EAJA’s fee award provision is

a statutory waiver of sovereign immunity. Ardestani v. INS, 502

U.S. 129, 137 (1991). Accordingly, if the phrase “any civil

action” is ambiguous between an interpretation that reaches

habeas actions and one that does not, then we must construe

the scope of the waiver to exclude them.

Still, “the clarity of each statute must be evaluated on its

own terms.” Dep’t of Agric. Rural Dev. Rural Hous. Serv. v.

Kirtz, 601 U.S. 42, 52 (2024) (cleaned up). What matters is

whether the statute is ambiguous after exhausting the

10

traditional tools of statutory interpretation, not before. United

States v. Rutherford, 120 F.4th 360, 380 n.28 (3d Cir. 2024).

Cf. Sebelius v. Cloer, 569 U.S. 369, 376–81 (2013) (holding

provision unambiguous and declining to apply sovereign

immunity canon after considering text, structure, and

purpose).3 If there is “no ambiguity left,” “[t]here is no need

for us to resort to the sovereign immunity canon.” Richlin Sec.

Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008). Only if, after

exhausting these tools, “there is a plausible interpretation of the

statute that would not authorize money damages against the

Government” do we “take the interpretation most favorable” to

it. Cooper, 566 U.S. at 290–91.

2. Habeas challenges to immigration detention under 28

U.S.C. § 2241 are civil actions.

“When interpreting a statute, we begin with the text.”

Lackey v. Stinnie, 604 U.S. 192, 199 (2025). To repeat, the

EAJA permits awards of fees and costs in “any civil action

3

We leave two tools—purpose and legislative history—in the

toolbox. The Supreme Court has admonished that “no amount

of legislative history can supply a waiver that is not clearly

evident from the language of the statute.” Kirtz, 601 U.S. at 49

(cleaned up). And we take its directive to focus on “the

language of the statute” in discerning the existence and scope

of a waiver to caution against considering purpose as well. Id.;

see also Ardestani, 502 U.S. at 138 (finding that “the broad

purposes of the EAJA would be served by making the statute

applicable to deportation proceedings,” but declining to

“extend the EAJA to [them] when the plain language of the

statute, coupled with the strict construction of waivers of

sovereign immunity, constrain us to do otherwise”).

11

(other than cases sounding in tort).” 28 U.S.C. §

2412(d)(1)(A). The statute does not define “civil action.” In the

absence of a statutory definition, we “start with the phrase’s

plain meaning” in 1980, when Congress enacted it in 1980.

Clean Air Council v. U.S. Steel Corp., 4 F.4th 204, 209 (3d Cir.

2021). It was “well settled” then that habeas corpus is a civil

action. Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257,

269 (1978); see also Stafford v. Briggs, 444 U.S. 527, 543

(1980) (“Habeas corpus is a civil action.” (cleaned up)). Thus,

we have acknowledged that the “plain meaning” and “literal

scope” of the phrase “civil action” include habeas actions. See

Santana v. United States, 98 F.3d 752, 754 (3d Cir. 1996).

The same is true when we consider “civil action” as a

legal term of art. When Congress enacted the EAJA, legal

dictionaries defined “civil action” on broad terms that reached

habeas proceedings. See, e.g., Black’s Law Dictionary 222 (5th

ed. 1979) (defining civil actions as “[a]ction[s] brought to

enforce, redress, or protect private rights” or as “all types of

actions other than criminal proceedings”); Radin Law

Dictionary 55 (2d ed. 1970) (defining a civil action as a “legal

proceeding brought to enforce a civil right or obtain redress for

its violation”); Ballentine’s Law Dictionary 202 (3d ed. 1969)

(the phrase “comprehend[s] every conceivable cause of action,

whether legal or equitable, except such as are criminal in the

usual sense”).

No wonder then that, at the time of the EAJA’s

enactment, the Federal Rules of Civil Procedure treated habeas

proceedings as civil actions. Rule 1 provided that the Rules

applied to “all suits of a civil nature . . . with the exceptions

stated in Rule 81.” Fed. R. Civ. P. 1 (1980). And Rule 81

specified the Rules “are applicable to proceedings for . . .

12

habeas corpus . . . to the extent that the practice in such

proceedings is not set forth in statutes of the United States and

has heretofore conformed to the practice in civil actions.” Fed.

R. Civ. P. 81(a) (1980). We know of no relevant statute or

practice that would have negated the civil status of immigration

challenges like this one. In any event, what matters most is that

the Rules generally presumed habeas actions were civil

actions, even if they were also distinctive ones. Harris v.

Nelson, 394 U.S. 286, 293–94 (1969).4

The common law history confirms habeas proceedings

are civil actions. “When Congress uses a term with origins in

the common law, we generally presume that the term ‘brings

the old soil with it.’” Kousisis v. United States, 605 U.S. 114,

124 (2025) (quoting Sekhar v. United States, 570 U.S. 729, 733

(2013)); see also Lackey, 604 U.S. at 200. “Civil action” is one

such term. As we described at the outset, the writ of habeas

corpus has deep roots in that rich soil. See 3 Blackstone at 115–

38; see also Ex parte Yerger, 75 U.S. (8 Wall.) 85, 96 (1868)

4

Today, Rule 81 continues to provide that the Rules “apply to

proceedings for habeas corpus” under almost identical

conditions. See Rule 81(a)(4). That said, our holding is that a

habeas petition under § 2241 challenging immigration

detention is a “civil action” for purposes of the EAJA, not that

such an action is a “civil action” for purposes of the Federal

Rules of Civil Procedure. We have no occasion to address the

latter topic. In any event, some provisions would caution

against reading every use of “civil action” that way. For

instance, Rule 3 provides that “[a] civil action is commenced

by filing a complaint with the court,” Fed. R. Civ. P. 3, yet a

habeas action begins with what the statute dubs “an

application,” 28 U.S.C. § 2241. So we do not decide this issue.

13

(holding the Supreme Court had the power to issue writs of

habeas corpus, one of “the most important powers in civil cases

of all the highest courts of England”); Kurtz v. Moffitt, 115 U.S.

487, 494 (1885) (“A writ of habeas corpus . . . is a civil suit or

proceeding, brought by him to assert the civil right of personal

liberty, against those who are holding him in custody[.]”).

The Government strains to deny habeas actions are

civil. It acknowledges—as it must—that the Supreme Court

and our Court have recognized habeas proceedings are at least

“technically” civil actions. See Abioye Opening Br. 21 (quoting

Schlanger v. Seamans, 401 U.S. 487, 490 n.4 (1971)), 27

(quoting Santana, 98 F.3d at 754). Nonetheless, the

Government insists habeas actions are “not wholly civil,”

Abioye Opening Br. 31, but rather “unique, hybrid actions in a

category of their own,” Abioye Opening Br. 11.

The “hybrid” theory raises a question: A hybrid of what

and what? The Government avoids saying in its brief, because

the answer exposes this argument as a dead end. To the extent

habeas actions are hybrids, they are hybrids of civil actions and

criminal ones. See, e.g., Santana, 98 F.3d at 754; O’Brien v.

Moore, 395 F.3d 499, 505 (4th Cir. 2005); see also Abioye

Opening Br. 8 (recounting that the Government told the

District Court habeas actions were “hybrid criminal/civil

proceedings”). The idea is that “to the extent that a habeas

proceeding reviews a criminal punishment with the potential

of overturning it, the habeas proceeding necessarily assumes

part of the underlying case’s criminal nature.” O’Brien, 395

F.3d at 505.

But we are not reviewing habeas petitions for release

from criminal detention. We are reviewing them for release

14

from immigration detention. In that context, every element is

civil. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001)

(recognizing immigration detention is “civil detention”); INS

v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (recognizing

removal proceedings are civil). Even immigration actions

subject to sui generis procedures, like removal proceedings

before an immigration judge, are “purely civil.” Lopez-

Mendoza, 468 U.S. at 1038. A hybrid of a civil action and a

civil action is a civil action.

Resisting that conclusion, the Government offers two

additional arguments that all habeas actions are in a category

of their own. The first says habeas is “unique” because it seeks

release from confinement. Abioye Opening Br. 31. But what

settles its status is the right it seeks to vindicate, not the remedy.

Habeas actions are civil because they protect the civil right to

personal liberty. See 3 Blackstone at 115–38; Santana, 98 F.3d

at 754 (citing Ex parte Tom Tong, 108 U.S. at 559). Second,

the Government suggests habeas is not civil because it does not

share every feature of archetypal civil actions. True enough.

But it does not follow that habeas is not a civil action. Many

civil actions—including ones expressly within the scope of the

EAJA’s “civil action” provision—have unique rules of practice

or procedure, like veterans’ benefits actions. See Henderson v.

Shinseki, 562 U.S. 428, 440 (2011) (observing “[t]he contrast

between ordinary civil litigation . . . and the system that

Congress created for the adjudication of veterans’ benefits

claims could hardly be more dramatic”); 28 U.S.C.

§§ 2412(d)(1)(A) (awarding fees in “any civil action” brought

“in any court”), (d)(2)(F) (defining “court” to include “the

United States Court of Appeals for Veterans Claims”).

15

Finally, the Government argues habeas is something

other than a civil action because, on rare occasion, courts have

held habeas actions fall outside the scope of particular statutory

references to “civil actions.” However, none of those decisions

repudiated the centuries-long doctrine that habeas actions are

civil. And none undermined the presumption Congress used

the term in the EAJA with that history in mind. See Bruesewitz

v. Wyeth LLC, 562 U.S. 223, 243 (2011) (noting that when

“nearly all of the relevant judicial decisions have given a term

or concept a consistent judicial gloss, we presume Congress

intended the term or concept to have that meaning when it

incorporated it into a later-enacted statute” (cleaned up)). All

these decisions did was acknowledge reasons specific to those

statutes to treat habeas differently there. They do not create any

ambiguity here, much less change the nature of habeas.

Consider each of the cases. The Supreme Court once

said in a footnote that Congress’s provision for nationwide

service of process in “a civil action” in 28 U.S.C. § 1391(e) did

not apply to habeas actions. Schlanger, 401 U.S. at 490 n.4. It

once criticized “the label [‘civil action’] [a]s gross and

inexact.” Harris, 394 U.S. at 293–94. And we have described

habeas as “somewhat of a hybrid,” Callwood v. Enow, 230

F.3d 627, 632 (3d Cir. 2000), and held that “a civil action” in

one provision of the Prison Litigation Reform Act (PLRA)

does not cover habeas actions, Santana, 98 F.3d at 754–56.

None of these decisions held habeas actions are not

civil. In fact, each one reaffirmed that they are. See Schlanger,

401 U.S. at 490 n.4 (acknowledging “habeas corpus is

technically ‘civil,’” even though it “is not automatically subject

to all the rules governing ordinary civil actions”); Harris, 394

U.S. at 293–94 (affirming habeas corpus is “characterized as

16

‘civil’” even though “the proceeding is unique” in that it “has

conformed with civil practice only in a general sense”);

Callwood, 230 F.3d at 632 (“A suit seeking a writ of habeas

corpus, although admittedly somewhat of a hybrid, is

considered civil in nature.”); Santana, 98 F.3d at 754–55

(describing habeas proceedings as, “in effect, hybrid actions,”

but reiterating that “[h]abeas corpus proceedings are

technically civil actions,” “independent civil dispositions of

completed criminal proceedings”). That is why in Callwood,

after calling habeas a hybrid, we reaffirmed it was a civil

action. 230 F.3d at 632. We have just done so again, “hold[ing]

that the phrase ‘civil action’ in [28 U.S.C.] § 1631”—a statute

enacted just two years after the EAJA—“encompasses habeas

proceedings,” even “though they are hybrid actions.” Khalil v.

President, United States of America et al., Nos. 25-2162 & 25-

2357, 2026 WL 111933, at *5 (3d Cir. 2026). Even if (or when)

habeas is a hybrid, that is a distinctive type of civil action, not

a third category of proceeding beyond civil and criminal.

All Schlanger, Harris, and Santana held was that the

particular provisions before them used “civil action” in a way

that did not cover habeas. Each reached that conclusion by

doing something we may not: overriding the plain meaning of

statutory text with legislative history. Schlanger acknowledged

“habeas corpus is technically ‘civil’” but reasoned the use of

“civil action” in § 1391(e) did not cover it because “the

legislative history of that section is barren of any indication

that Congress extended habeas corpus jurisdiction.” 401 U.S.

at 490 n.4; see also Stafford, 444 U.S. at 543 (observing

Schlanger “recogniz[ed] that habeas corpus is a ‘civil action,’”

but “turn[ed] to the legislative history to determine which ‘civil

actions’ § 1391(e) governed”). Harris declined to apply

Federal Rule of Civil Procedure 33 to habeas actions despite

17

the fact “that habeas corpus proceedings are characterized as

‘civil’” only after divining “the intent of the draftsmen.” 394

U.S. at 293–95. In Santana, we disregarded what we

acknowledged was “the plain meaning” of the text and the

PLRA’s express exclusion of habeas elsewhere, id. at 754–55,

in significant part because of that statute’s legislative history,

id. at 755, and precedents that took the same approach, like

Schlanger and Harris, id. at 754–55. We do not read statutes

this way anymore, Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427, 436 (2019)—especially not waivers of sovereign

immunity, Kirtz, 601 U.S. at 49.5

These decisions do not make it plausible that, in the

EAJA, “civil action” excludes habeas actions. Each reaffirmed

that they are civil. No surprise, for our law long has recognized

that habeas “is a civil, and not a criminal, proceeding,” see

Fisher v. Baker, 203 U.S. 174, 181 (1906)—a line Harris cited,

394 U.S. at 293; see also, e.g., In re Nwanze, 242 F.3d 521, 526

n.2 (3d Cir. 2001) (“[H]abeas corpus petitions are technically

civil actions[.]”); Parrott v. Gov’t of Virgin Islands, 230 F.3d

615, 620 (3d Cir. 2000) (“Because habeas proceedings are

generally considered civil in nature, the term ‘civil action’

includes habeas petitions.” (citation omitted)); Henderson v.

Frank, 155 F.3d 159, 167 (3d Cir. 1998) (“[T]he writ of habeas

corpus is a civil proceeding[.]”).

5

A panel of our Court once opined that a habeas challenge to

criminal detention is not an EAJA “civil action.” Daley v. Fed.

Bureau of Prisons, 199 F. App’x 119, 121 (3d Cir. 2006). We

are unpersuaded by this unexplained dictum in a not

precedential opinion—not least because the case was an appeal

by a pro se litigant who could not recover attorneys’ fees in the

first place.

18

All told, we cannot put it better than the Supreme Court

did when Congress enacted the EAJA: “It is well settled that

habeas corpus is a civil proceeding.” Browder, 434 U.S. at 269;

see also Stafford, 444 U.S. at 543 (“Habeas corpus is a civil

action.” (cleaned up)).6 Accordingly, we hold “civil action” in

the EAJA clearly encompasses habeas challenges to

immigration detention under 28 U.S.C. § 2241.

3. Even if “civil action” were ambiguous, “any civil

action (other than cases sounding in tort)” clearly

covers habeas challenges to immigration detention.

Unable to dislodge the centuries of authority

establishing a petition for a writ of habeas corpus is a civil

action, the Government retreats to the position that the EAJA

is ambiguous between a meaning that includes habeas actions

and one that does not. As we have discussed, even though the

phrase “civil action” almost always covers habeas, there are

rare exceptions when it does not. Emphasizing that fact, the

Government contends that in isolation the phrase “civil action”

might mean either all civil actions or only some subset of them,

excluding the ones that are “unique,” Harris, 394 U.S. at 294,

or “hybrid,” Santana, 98 F.3d at 754. And that, the

6

The Government also contends habeas is not an EAJA “civil

action” because the enacting Congress would have had in mind

the Supreme Court’s relatively recent decisions in Harris and

Schlanger. Even if those decisions held habeas were not

civil—which they did not—this argument would fail by its own

terms, because Browder and Stafford—which expressly

recognized habeas is civil—are years closer to the EAJA’s

enactment.

19

Government would have us conclude, means the EAJA’s “civil

action” provision is ambiguous.

However, we do not read statutes in isolation. “A

statutory provision is not ambiguous simply because, by itself,

it is susceptible to differing constructions.” Hayes v. Harvey,

903 F.3d 32, 41 (3d Cir. 2018) (en banc) (cleaned up). “Rather,

in examining statutory language, we take account of the

specific context in which that language is used.” Id. (cleaned

up).7

Here, the most immediate context—the wording on

either side of “civil action”—dispels any doubt the EAJA

encompasses habeas actions. Zoom out one word, and we find

the provision does not just say “civil action.” It says “any civil

action.” 28 U.S.C. § 2412(d)(1)(A). On Abioye’s and

Michelin’s interpretation, the word “any” matters: it conveys

that the statute reaches civil actions “of whatever kind”—even

variations like habeas proceedings. See Cazun v. Att’y Gen.,

856 F.3d 249, 255 (3d Cir. 2017) (quoting Webster’s Third

New International Dictionary 97 (1976)); see also Lac du

Flambeau Band of Lake Superior Chippewa Indians v.

Coughlin, 599 U.S. 382, 390 (2023) (emphasizing the

significance of the Bankruptcy Code’s categorical abrogation

of the sovereign immunity of “any governmental unit that

might attempt to assert it” (emphasis in text)).

Their interpretation commands strong support. The

Supreme Court has held the words “any civil action”

7

For good reason: In isolation, almost anything can be

ambiguous. “Mary had a little lamb” seems clear. But did Mary

own a baby sheep or eat a piece of one for dinner?

20

unambiguously cover every civil action not expressly

excepted. Ex parte Collett, 337 U.S. 55, 58 (1949) (“The reach

of ‘any civil action’ is unmistakable.” (footnote omitted)).

On the Government’s interpretation, the word “any”

plays no role. The statute would have had the same scope if

Congress had written “civil action” alone, applying only to

“garden-variety civil actions.” Abioye Opening Br. 25. That

will not do. “We are reluctant to treat statutory terms as

surplusage in any setting.” Bufkin v. Collins, 604 U.S. 369, 386

(2025) (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)).

If “any” means anything, it means “any civil action”

encompasses habeas actions.

The Government responds that “[t]he adjective ‘any’ is

indeed a broad term, but it cannot expand the reach of the noun

it modifies.” Abioye Reply Br. 12–13 (quoting San Francisco

v. EPA, 604 U.S. 334, 348 (2025)). True enough. But the point

is not that “any” expands the scope of “civil action”: the word

gives “civil action” its complete scope, including civil

proceedings with unusual features. Even if habeas is a

distinctive civil action, reading “any civil action” to encompass

a habeas proceeding is not like reading “any mammal” to

“encompass a bird or fish,” see San Francisco, 604 U.S. at 348,

for the Government acknowledges “habeas corpus is

technically ‘civil’”, Abioye Opening Br. 21 (quoting

Schlanger, 401 U.S. at 490 n.4); see also Abioye Reply Br. 10

(“habeas proceedings may ‘technically’ be civil actions”), 13

(“they are ‘technically’ civil actions”). At most, it is like

reading “any mammal” to encompass a platypus—technically

a mammal, even though it lays eggs. See Pugin v. Garland, 599

U.S. 600, 623 (2023) (Sotomayor, J., dissenting).

21

Then there are the words that follow “any civil action.”

The EAJA continues with “(other than cases sounding in tort).”

28 U.S.C. § 2412(d)(1)(A). “When Congress provides

exceptions in a statute, . . . [t]he proper inference . . . is that

Congress considered the issue of exceptions and, in the end,

limited the statute to the ones set forth.” United States v.

Johnson, 529 U.S. 53, 58 (2000). Congress explicitly carved

out torts. The “proper inference” is that Congress did not

implicitly carve out habeas actions. The Government’s sole

response is that because habeas is not a civil action, Congress

did not have to exclude it expressly. But as we have shown, it

is civil.

The wider context confirms our conclusion. Interpreting

“any civil action” to include habeas actions is the only way to

harmonize the EAJA with the rest of the U.S. Code.

Interpreting “any civil action” to exclude them would render

the EAJA an anomaly. We strive to construe each word “to

contain that permissible meaning which fits most logically and

comfortably into the body of both previously and subsequently

enacted law.” W. Va. Univ. Hosp., Inc. v. Casey, 499 U.S. 83,

101 (1991), superseded by statute as recognized in Landgraf v.

USI Film Products, 511 U.S. 244, 251 (1994); see also Lac du

Flambeau Band, 599 U.S. at 392–93 & n.3 (holding

Bankruptcy Code’s abrogation of the sovereign immunity of

“governmental units” extends to Indian tribes in part because

“Congress has repeatedly characterized tribes as governments”

in other statutes); Burrage v. United States, 571 U.S. 204, 212

(2014) (interpreting statute in light of how “courts regularly

read” comparable language elsewhere in the U.S. Code);

Bostock v. Clayton Cnty., 590 U.S. 644, 791–92 (2020)

(Kavanaugh, J., dissenting) (observing that “longstanding and

widespread congressional practice matters” in interpreting

22

statutes). We do so because “it is our role to make sense rather

than nonsense out of the corpus juris.” W. Va. Univ. Hosp., 499

U.S. at 101.

Every time Congress has used “any civil action” or a

cognate, the phrase encompasses habeas proceedings, save

where Congress expressly excluded them. See, e.g.,

Boumediene v. Bush, 553 U.S. 723, 796 (2008) (permitting the

Government to move for a change of venue for a habeas action

under 28 U.S.C. § 1404(a), which applies to “any civil

action”); German Santos v. Warden Pike Cnty. Corr. Facility,

965 F.3d 203, 208 (3d Cir. 2020) (holding the district court had

jurisdiction over a habeas action under 28 U.S.C. § 1331,

which applies to “all civil actions”); Hilborn v. United States,

163 U.S. 342, 345 (1896) (holding a since-repealed statute

covering “all civil actions” included habeas actions); Reid v.

Covert, 351 U.S. 487, 489–90 (1957) (holding the Supreme

Court had jurisdiction over an appeal from a grant of a habeas

petition pursuant to a since-repealed statute authorizing direct

appeals from “any civil action, suit, or proceeding” meeting

certain requirements); 28 U.S.C. § 1914(a) (“[T]he parties

instituting any civil action, suit or proceeding in [a district]

court . . . [must] pay a filing fee of $350, except that on

application for a writ of habeas corpus the filing fee shall be

$5.”); 18 U.S.C. § 3626(g) (defining the phrase “civil action

with respect to prison conditions” as “any civil proceeding”

meeting certain criteria except “habeas corpus proceedings

challenging the fact or duration of confinement”).

The Government has not produced a single

counterexample. Reading the EAJA consistently with the rest

of the U.S. Code therefore requires reading “any civil action”

23

to comprehend habeas actions, as we do everywhere else they

are not carved out by name.

On the Government’s reading, the EAJA is one of a

kind, and not in a good way: the only statute in the U.S. Code

to use “any civil action” to implicitly exclude habeas actions.

On Abioye’s and Michelin’s reading, the EAJA is part of a

consistent, coherent body of law. That is one more reason to

think the statute unambiguously covers habeas proceedings.

In sum, the Government advances a superficially

instinctive argument: because “civil action” does not

invariably cover habeas actions, the phrase must be ambiguous

between an interpretation that does and another that does not.

However, in context—preceded by “any,” followed by a torts

exception, and situated in a body of law where “any civil

action” includes habeas save where explicitly excluded—the

EAJA’s “civil action” provision clearly covers habeas actions

pursuant to 28 U.S.C. § 2241.

4. We hew closest to the Tenth Circuit’s approach.

Our specific issue has divided other courts. The Fourth

and Fifth Circuits have held habeas proceedings are not clearly

EAJA “civil actions.” The Second, Ninth, and Tenth Circuits

have held habeas challenges to immigration proceedings are.

We find the Tenth Circuit’s opinion most persuasive. Still, we

chart our own path.

Begin with the Fourth Circuit. In O’Brien v. Moore, it

held the EAJA does not waive sovereign immunity to fee

awards in habeas proceedings challenging criminal detention.

395 F.3d at 508. The statute’s use of “civil action,” the Court

24

thought, was ambiguous between every civil action, which

would include habeas actions, and every “wholly civil action,”

which would not. See id. at 504–06. “[B]ecause habeas actions

have both a criminal and civil nature,” it reasoned, “when a

statutory provision regulates a ‘civil action,’ we can only

conclude that it does not necessarily follow that it also

regulates a habeas proceeding.” Id. at 505–06.

We do not follow O’Brien for four reasons. First, the

decision ignored two crucial pieces of the statutory text: the

“any” that precedes “civil action” and the torts exception that

follows. Second, the decision largely neglected the deep

common–law history of habeas as a civil action. Third,

O’Brien’s reasoning does not extend to habeas challenges to

civil immigration detention. As we have noted, the Fourth

Circuit classified habeas cases as hybrids because “to the

extent that a habeas proceeding reviews a criminal punishment

with the potential of overturning it, the habeas proceeding

necessarily assumes part of the underlying case’s criminal

nature.” Id. at 505. The habeas petitions before us review

immigration detention—a civil matter—so there is no

underlying criminal case whose nature they could assume.

Fourth, O’Brien acknowledged this distinction, distinguishing

cases where “the habeas corpus proceeding was filed in an

immigration context” from the challenge to criminal detention

before it. Id. at 507 (citing Sotelo-Aquije v. Slattery, 62 F.3d

54, 56, 59 (2d Cir. 1995)). By its own terms, the case has little

to say to us.

Four years ago, a divided panel of the same Court held

the EAJA does not unambiguously cover habeas challenges to

immigration detention, claiming “[t]his conclusion is required

by” O’Brien. Obando-Segura v. Garland, 999 F.3d 190, 193

25

(4th Cir. 2021). The Obando-Segura Court brushed aside the

distinction between challenges to criminal detention and civil,

asserting—incorrectly—that O’Brien “did not differentiate”

between them. Id. at 194. This time, the Fourth Circuit

acknowledged that the EAJA covers “any civil action.” Id. at

196. But it disregarded “any” without weighing its

consequences: “whatever we think of the possibility that the

term ‘any’ can sufficiently disambiguate the term ‘civil action,’

that argument cannot survive O’Brien.” Id. And the Court

again failed to take account of the torts exception. So we are

not persuaded by Obando-Segura either.

Turn to the Fifth Circuit. Its brief decision in Barco v.

Witte, 65 F.4th 782 (5th Cir. 2023), cert. denied, 144 S. Ct. 553

(2024), relies on Obando-Segura and shares its flaws. Barco

also held “civil action” is ambiguous between all civil actions,

which might include habeas, and “purely civil” actions, id. at

783, which would not because of the “hybrid nature” of habeas,

id. at 785. So it, too, held the EAJA does not waive sovereign

immunity for habeas challenges to immigration detention. Id.

Like O’Brien and Obando-Segura, Barco did not analyze

whether the word “any” or the torts exclusion make a

difference. Like Obando-Segura, Barco deferred to circuit

precedent treating habeas actions as hybrids between criminal

and civil actions. And it also did so without explaining why

challenges to civil detention have any criminal component or

reckoning with the historic civil status of petitions for writs of

habeas corpus. Consequently, we find the Fifth Circuit’s

decision no more convincing than its Fourth Circuit

predecessors.

The Second and Ninth Circuits reached the same result

we do, but for reasons we decline to follow. The Ninth Circuit

26

held the EAJA’s fee award provision encompassed habeas

petitions because that interpretation would advance the

statute’s purposes: providing a financial incentive for private

parties to challenge Government conduct and encouraging

litigation to improve public policy. In re Hill, 775 F.2d 1037,

1040–41 (9th Cir. 1985). The Court barely considered the text.

See id. The Second Circuit held habeas challenges to

immigration detention were EAJA “civil actions” because of

“the legislative history of the EAJA,” despite “the ambiguity

of the term ‘civil action[]’ and the indeterminacy of the existing

precedent.” Vacchio v. Ashcroft, 404 F.3d 663, 669–72 (2d Cir.

2005). Unlike these courts, we stick to the text and context read

against the backdrop of our legal history.

We have found the Tenth Circuit’s recent decision,

Daley v. Ceja, 158 F.4th 1152 (10th Cir. 2025), illuminating.

As do we, that Court held the EAJA waives federal sovereign

immunity to fee awards for habeas challenges to immigration

detention because “any civil action” unambiguously

encompasses those actions. See id. at 1155, 1162, 1166. And

the Court relied, in part, on an insightful evaluation of the

historic civil status of habeas actions. See id. at 1157–60. But

we part ways in one analytical respect. The Daley Court

considered the EAJA’s purposes. See id. at 1162–64. We do

not.

* * *

For these reasons, we hold the EAJA unambiguously

applies to habeas challenges to immigration detention under 28

U.S.C. § 2241.

27

B. The District Court did not abuse its discretion in finding

the Government’s position in Abioye was not

substantially justified.

The Government detained Abioye for over 16 months

without an individualized bond hearing before he petitioned for

a writ of habeas corpus. When he filed his petition, the

Government contested his right to a hearing. He prevailed, yet

he had spent over 18 months in custody.

Under the EAJA, the Government’s position was

substantially justified only if its conduct was “justified to a

degree that could satisfy a reasonable person.” Johnson v.

Gonzales, 416 F.3d 205, 210 (3d Cir. 2005) (quoting Pierce v.

Underwood, 487 U.S. 552, 565 (1988)). The Government bears

the burden of proving its position was justified. Hanover

Potato Prods., Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir.

1993). “To satisfy this burden and defeat a prevailing party’s

application for fees, the government must . . . demonstrat[e]

‘(1) a reasonable basis in truth for the facts alleged; (2) a

reasonable basis in law for the theory it propounded; and (3) a

reasonable connection between the facts alleged and the legal

theory advanced.’” Cruz, 630 F.3d at 324 (quoting Morgan v.

Perry, 142 F.3d 670, 684 (3d Cir. 1998)). “[I]n immigration

cases, the Government must meet the substantially justified test

twice”: once for its underlying conduct and once for its

decisions in the ensuing litigation about that conduct. Johnson,

416 F.3d at 210. We do not assume the position of the

Government was not substantially justified simply because it

lost. William v. Astrue, 600 F.3d 299, 302 (3d Cir. 2009).

8 U.S.C. § 1226(c) requires the Government to detain

immigrants with certain criminal convictions pending removal

28

without bond hearings. German Santos, 965 F.3d at 206. The

Supreme Court has held § 1226(c) is not facially

unconstitutional. Demore v. Kim, 538 U.S. 510, 531 (2003).

But the Court “did so because it understood that the detention

would last only for a ‘very limited time,’” German Santos, 965

F.3d at 208 (quoting Demore, 538 U.S. at 529 n.12)—“roughly

a month and a half in the vast majority of cases” and “about

five months” if the immigrant appealed removal, Demore, 538

U.S. at 530. Accordingly, immigrants detained under § 1226(c)

may bring as-applied challenges to the constitutionality of their

detentions. German Santos, 965 F.3d at 209. The longer they

are detained without bond hearings, the more likely their

detention abridges the liberty secured by the Due Process

Clause. See id. at 209–10; Demore, 538 U.S. at 532 (Kennedy,

J., concurring). “When detention becomes unreasonable, the

Due Process Clause demands a hearing.” German Santos, 965

F.3d at 210 (cleaned up).

We have identified four “nonexhaustive” factors

governing when detention is unreasonable: the length of

detention, the likelihood it will continue, the reasons for delay,

and how confinement conditions compare to criminal

punishment. Id. at 211–12. “The most important factor is the

duration of detention.” Id.

The Government had no reasonable basis in law for

contesting Abioye’s petition for a bond hearing after over 16

months in detention without one. We have spoken clearly:

“Detention becomes more and more suspect after five months.”

Id. (cleaned up). To be sure, we have declined to impose a per

se rule that any detention longer than a certain duration is

unreasonable; the precise time may vary case to case. Id.

Nevertheless, we have held “detention became unreasonable

29

sometime between six months and one year” after it began. Id.

(citing Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d

469 (3d Cir. 2015), abrogated in part on other grounds by

Jennings v. Rodriguez, 583 U.S. 281 (2018)). Nothing in the

facts here gave the Government a reasonable basis for arguing

against a bond hearing after roughly double that length of

time—and more than triple the length of time the Supreme

Court assumed in Demore and we emphasized in German

Santos. That is especially true because Abioye’s detention was

likely to continue much longer because of his appeal to the

Fourth Circuit. See id. at 212 (finding second factor “strongly

supports a finding of unreasonableness” when detainee has

pending appeal). That appeal continues to this day.

To be sure, the Government could reasonably have

thought the third and fourth factors did not weigh against its

position. The reasons for delay favored neither side. Although

Abioye’s appeal of the order of his removal prolonged his

detention, we do “not hold an alien’s good-faith challenge to

his removal against him, even if his appeals or applications for

relief have drawn out the proceedings.” Id. at 211. Likewise,

although the Government’s incorrect opposition to Abioye’s

petition for a bond hearing compounded the delay, we do not

“hold the agency’s legal errors against the Government, unless

there is evidence of carelessness or bad faith.” Id.

The conditions of Abioye’s confinement did not clarify

the matter either. On one hand, as the District Court noted, the

conditions were not as obviously penal as those we held against

the Government in German Santos. There, the detainee was

held alongside convicted criminals. Id. at 212–13. Here,

Abioye was held with other immigration detainees. The

detainee in German Santos was confined to his cell for 23

30

hours a day. Id. at 213. Abioye was afforded several hours of

recreation, and the rest of his day was spent in his “pod”—a

group of cells—rather than just his own cell. On the other hand,

District Courts in our Circuit have recognized the conditions at

Moshannon are penal in nature. See Grigoryan v. Jamison, No.

25-1389, 2025 WL 1257693, at *5 (E.D. Pa. Apr. 30, 2025)

(collecting cases).8 And Abioye attested the conditions he

experienced there were worse than those he experienced in

federal criminal custody. For our purposes, what matters is that

even if this factor weighed against detaining Abioye any longer

without a hearing, it did not weigh so heavily in that direction

that the Government had no reasonable basis for contesting it.

With that said, the Government also had no reasonable

basis in law for thinking any ambivalence on the third and

fourth factors could outweigh its decisive loss on the first two.

Our conclusion remains that the District Court did not abuse its

discretion in finding the Government was not substantially

justified in detaining Abioye for so long, with no end on the

horizon, in the absence of any distinctive reason to deny him a

hearing. It should have known better.

The Government advances several counterarguments.

None proves sound. The first is that the Supreme Court might

one day endorse the Government’s position that indefinite

detention without a bond hearing under § 1226(c) is

constitutional, full stop. Perhaps it will. In the meantime, we

have held that indefinite detention without a bond hearing can

violate the Due Process Clause and that as-applied challenges

8

We have said the same about the conditions at Pike County

Correctional Facility, where Abioye spent a few of his months

in confinement. See German Santos, 965 F.3d at 212–13.

31

raising that claim are available. German Santos, 965 F.3d at

209. And this appeal is not a proper vehicle for revisiting that

question because the Government did not appeal the District

Court’s determination that the statute was unconstitutional as

applied to Abioye—only that Court’s subsequent award of

fees.

Second, the Government claims the District Court

abused its discretion by applying a brightline rule that any

detention longer than one year is unreasonable. But the Court

did not do that. Instead, it correctly treated the reasonableness

of detention as a fact-sensitive inquiry. Even if it had applied a

brightline rule, “we may affirm on any ground supported by the

record . . . even if the [D]istrict [C]ourt overlooked it or it

involves an attack on the [D]istrict [C]ourt’s reasoning.” See

Laurel Gardens, LLC v. Mckenna, 948 F.3d 105, 116 (3d Cir.

2020). What’s more, for all the Government’s insistence that

the length of detention must be assessed case by case, it offers

no special reason to think more than 16 months of detention

here—18 months by the time of Abioye’s release—was

reasonable in this case.

Third, the Government asserts the District Court abused

its discretion because the decision awarding fees did not revisit

the German Santos analysis from the merits decision that

Abioye’s detention was unreasonable. However, the Court had

no obligation to recap its ruling. See Morgan v. Perry, 142 F.3d

670, 683 (3d Cir. 1998) (noting, without issue, that the District

Court’s factual findings were recited in the merits decision but

not the fee decision).

Fourth, the Government claims the length of detention

could not support a finding its position was not substantially

32

justified because the District Court described this factor as “a

close call” when ruling on the merits of the habeas petition.

Abioye Opening Br. 47–49 (quoting Abioye App’x 29). The

Court violated the law of the case doctrine, as the Government

sees it, by subsequently finding it had no reasonable basis for

detaining Abioye that long. It offers no authority for the

proposition that the Court’s offhand remark is subject to the

law of the case doctrine. Even if it were, we could affirm on

the ground that the record indicates the length of detention was

not, in fact, “a close call”—because it was not.

Fifth, the Government argues its position was

substantially justified because the District Court did not hold

every German Santos factor cut against detention: the Court

found the first two weighed in favor of Abioye, but the third

was neutral and the fourth favored the Government. However,

we have never held that the Government’s position is

substantially justified just because a single factor weighs in its

favor—and that argument is particularly implausible where, as

here, the most important factor (duration) weighed against the

Government and the second factor “strongly support[ed]” the

same conclusion. German Santos, 965 F.3d at 212.

In sum, the District Court did not abuse its discretion in

determining the Government failed to prove it was

substantially justified in resisting Abioye’s petition for an

individualized bond hearing after detaining him for over 16

months without one, with no end to his detention then in sight.

* * *

The EAJA authorizes an award of attorneys’ fees and

costs to the prevailing party “in any civil action (other than

33

cases sounding in tort)” brought by or against the United States

if the Government’s position was not “substantially justified.”

28 U.S.C. § 2412(d)(1)(A). We hold this provision clearly

covers petitions for writs of habeas corpus from immigration

detention under 28 U.S.C. § 2241, and so it waives federal

sovereign immunity to the fee awards issued here. Our

rationale: Habeas actions are civil actions. They have been

since before our Nation’s Founding. As the Supreme Court and

our Court have recognized, the plain and technical meanings

of “civil action” encompass them. Even if “civil action” were

ambiguous because it does not always cover habeas

proceedings, “any civil action (other than cases sounding in

tort)” is as clear as can be. “Any” extends coverage to all civil

actions, no matter the type. And by expressly excluding torts,

Congress ruled out any implicit exclusions.

We also hold the District Court did not abuse its

discretion in finding the Government’s position in Abioye was

not substantially justified. After detaining Abioye for over 16

months, with reason to think he would remain in custody for

months or years to come, the Government had no reasonable

basis in law for fighting to deny him an individualized bond

hearing.

We close by echoing the Supreme Court’s recent

reflections on the historic role of the writ of habeas corpus.

“When English monarchs jailed their subjects summarily and

indefinitely, common-law courts employed the writ as a way to

compel the crown to explain its actions—and, if necessary,

ensure adequate process . . . before allowing any further

detention. The Great Writ was, in this way, no less than ‘the

instrument by which due process could be insisted upon.’”

Brown v. Davenport, 596 U.S. 118, 128 (2022) (citation

34

omitted) (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 555

(2004) (Scalia, J., dissenting)). It remains so today. With this

history in mind, we affirm.

35