Amicus Curiae Brief — Kevin Isaac Montoya Palacios, Petitioner v. Vernon Liggins, Acting Field Office Director, Baltimore, Maryland, Immigration and Customs Enforcement, et al.

No. 25-1223

IN THE

Supreme Court of the United States

KEVIN ISAAC MONTOYA PALACIOS,

Petitioner,

v.

VERNON LIGGINS, ACTING FIELD OFFICE DIRECTOR,

BALTIMORE FIELD OFFICE, UNITED STATES

IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1730 Rhode Island Ave. NW

Suite 1200

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

September 23, 2026

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICUS CURIAE ......................

1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

1

ARGUMENT .........................................................

5

I.

The Decision Whether to Waive the

Federal Government’s Sovereign

Immunity Belongs to Congress. ................

5

This Court Should Respect Congress’s

Unambiguous Waiver of Sovereign

Immunity in the EAJA, Authorizing Fees

and Costs in “Any Civil Action.”................

11

CONCLUSION .....................................................

18

II.

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ali v. Fed. Bureau of Prisons,

552 U.S. 214 (2008) ....................................

13

Ardestani v. INS,

502 U.S. 129 (1991) ....................................

10

Bell v. Hood,

327 U.S. 678 (1946) ....................................

7

Bostock v. Clayton County,

590 U.S. 644 (2020) ....................................

9

Browder v. Dir., Dep’t of Corr. of Ill.,

434 U.S. 257 (1978) ................................... 4, 15

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992) ....................................

10

Dellmuth v. Muth,

491 U.S. 223 (1989) ................................... 3, 10

Dep’t of Agric. Rural Dev. Rural Hous. Serv.

v. Kirtz,

601 U.S. 42 (2024) .................... 1-3, 8, 9, 11, 14

Egbert v. Boule,

596 U.S. 482 (2022) ....................................

2

Ex parte Tom Tong,

108 U.S. 556 (1883) ....................................

14

Exxon Mobil Corp. v. Corporación Cimex,

S. A. (Cuba),

146 S. Ct. 1909 (2026) ................................ 3, 9

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

FAA v. Cooper,

566 U.S. 284 (2012) ............................... 2, 3, 11

Fin. Oversight & Mgmt. Bd. for P.R. v.

Centro de Periodismo Investigativo, Inc.,

598 U.S. 339 (2023) .................................. 9, 10

Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427 (2019) ...................................

14

FS Credit Opportunities Corp. v. Saba Cap.

Master Fund, Ltd.,

146 S. Ct. 1546 (2026) ................................

8

Great N. Life Ins. Co. v. Read,

322 U.S. 47 (1944) ......................................

6

Harris v. Nelson,

394 U.S. 286 (1969) ........................

4, 5, 14, 15

Harrison v. PPG Indus., Inc.,

446 U.S. 578 (1980) ....................................

12

Health & Hosp. Corp. of Marion Cnty. v.

Talevski,

599 U.S. 166 (2023) ....................................

7

Hernandez v. Mesa,

589 U.S. 93 (2020) ......................................

5

Indian Towing Co. v. United States,

350 U.S. 61 (1955) ......................................

18

INS v. Lopez-Mendoza,

468 U.S. 1032 (1984) ..................................

16

iv

TABLE OF AUTHORITIES – cont’d

Page(s)

Kimel v. Fla. Bd. of Regents,

528 U.S. 62 (2000) ......................................

10

Kisor v. Wilkie,

588 U.S. 558 (2019) ....................................

3

Lac du Flambeau Band of Lake Superior

Chippewa Indians v. Coughlin,

599 U.S. 382 (2023) .................................... 9, 11

Larson v. Domestic & Foreign Com. Corp.,

337 U.S. 682 (1949) ....................................

1

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .....................

6

Michelin v. Warden Moshannon Valley

Corr. Ctr.,

169 F.4th 418 (3d Cir. 2026) ......................

16

Milner v. Dep’t of Navy,

562 U.S. 562 (2011) ....................................

9

Obando-Segura v. Garland,

999 F.3d 190 (4th Cir. 2021) ......................

4

O’Brien v. Moore,

395 F.3d 499 (4th Cir. 2005) ..................... 4, 15

O’Neal v. McAninch,

513 U.S. 432 (1995) ....................................

15

Pennsylvania v. Union Gas Co.,

491 U.S. 1 (1989) ........................................

8

Richlin Sec. Serv. Co. v. Chertoff,

553 U.S. 571 (2008) ................................ 10, 17

v

TABLE OF AUTHORITIES – cont’d

Page(s)

SAS Inst., Inc. v. Iancu,

584 U.S. 357 (2018) ....................................

12

Schlanger v. Seamans,

401 U.S. 487 (1971) .................................. 4, 14

Schweiker v. Chilicky,

487 U.S. 412 (1988) ....................................

2

Sebelius v. Cloer,

569 U.S. 369 (2013) ....................................

10

Smith v. United States,

507 U.S. 197 (1993) ....................................

2

Thacker v. Tenn. Valley Auth.,

587 U.S. 218 (2019) ....................................

6

The Siren,

74 U.S. (7 Wall.) 152 (1868) .......................

6

United States v. Gonzales,

520 U.S. 1 (1997) ........................................

12

United States v. Idaho ex rel. Dir., Idaho

Dep’t of Water Res.,

508 U.S. 1 (1993) ........................................

2

United States v. Johnson,

529 U.S. 53 (2000) ......................................

13

United States v. Nordic Vill., Inc.,

503 U.S. 30 (1992) ......................................

9

U.S. Dep’t of Energy v. Ohio,

503 U.S. 607 (1992) .................................. 10, 17

vi

TABLE OF AUTHORITIES – cont’d

Page(s)

Wis. Cent. Ltd. v. United States,

585 U.S. 274 (2018) ....................................

11

Wiscart v. Dauchy,

3 U.S. (3 Dall.) 321 (1796)..........................

12

Zadvydas v. Davis,

533 U.S. 678 (2001) ....................................

16

Statutes

5 U.S.C. § 504(b)(1)(A) ..................................

17

28 U.S.C. § 1391(e) (1964 ed.) .......................

14

28 U.S.C. § 2412(d)(1)(A) ............. 3, 5, 11, 13, 17

Books, Articles, and Other Authorities

The American Heritage Dictionary (2d

Coll. Ed. 1982) ........................................ 12, 17

Appellants’ Petition for Rehearing En

Banc, Daley v. Ceja, 158 F.4th 1152

(10th Cir. 2025) (No. 24-1191), Dkt.

No. 106-1 ................................................... 5, 13

Amy C. Barrett, Substantive Canons and

Faithful Agency,

90 B.U. L. Rev. 109 (2010) .........................

7

Ballentine’s Law Dictionary (3d ed. 1969) ...

11

Black’s Law Dictionary (5th ed. 1979).... 3, 11, 12

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Brief for Appellants, Michelin v. Warden

Moshannon Valley Corr. Ctr., 169 F.4th

418 (3d Cir. 2026) (No. 24-3198), Dkt.

No. 106-1 ..............................................

5, 13

William Blackstone, Commentaries ....... 4, 12, 13

Harold J. Krent, Reconceptualizing

Sovereign Immunity,

45 Vand. L. Rev. 1529 (1992) .....................

8

John Copeland Nagle, Waiving Sovereign

Immunity in an Age of Clear Statement

Rules, 1995 Wis. L. Rev. 771 .....................

8

Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts

(2012) ..........................................................

7

Gregory C. Sisk, Twilight for the Strict

Construction of Waivers of Federal

Sovereign Immunity,

92 N.C. L. Rev. 1245 (2014) .......................

7

Webster’s Ninth New Collegiate

Dictionary (1983)................................ 3, 12, 17

1

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC works in our courts, through

our government, and with legal scholars to improve

understanding of the Constitution and preserve the

rights and freedoms it guarantees. CAC has a strong

interest in protecting meaningful access to the courts,

in accordance with constitutional text and history, and

accordingly has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Although the text of the Constitution nowhere explicitly provides for federal sovereign immunity, this

Court has concluded that “the strongest reasons of

public policy” counsel against allowing “any plaintiff

who presents a disputed question of property or . . .

right” to interfere with the “Government as representative of the community as a whole.” Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 704 (1949).

The converse of this rule is that the community as a

whole, through its elected representatives in Congress,

can determine that there are situations in which it is

appropriate for the federal government to be held accountable in court, including for money damages and

other financial penalties. See, e.g., Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 48

(2024) (calling this choice “Congress’s prerogative”).

Because these principles ensure that democratically

1 No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund its preparation or submission. No person other than amicus or its counsel made a monetary contribution to its preparation

or submission.

2

accountable leaders decide when public concerns

should bow to private complaints, this Court’s role is

simple: heed the text of the laws Congress has passed

and allow for waivers of sovereign immunity that are

no broader or narrower than that text dictates. If the

statutory text is clear, this Court’s job is at its end.

This Court has repeatedly taken exactly this approach. Time and again, it has explained that “just as

‘we should not take it upon ourselves to extend [a]

waiver [of sovereign immunity] beyond that which

Congress intended[,] . . . [n]either, however, should we

assume the authority to narrow the waiver that Congress intended.’” United States v. Idaho ex rel. Dir.,

Idaho Dep’t of Water Res., 508 U.S. 1, 7 (1993) (third

and fourth alterations in original) (quoting Smith v.

United States, 507 U.S. 197, 203 (1993)). And because

the decision to waive sovereign immunity involves policy considerations that “Congress is ‘far more competent than the Judiciary’ to weigh,” Egbert v. Boule, 596

U.S. 482, 491 (2022) (quoting Schweiker v. Chilicky,

487 U.S. 412, 423 (1988)), this Court has made clear

that judges should not dictate how Congress waives

sovereign immunity. Doing so—“imposing a ‘magicwords’ requirement,” Kirtz, 601 U.S. at 54, for example—would undermine the entire basis for vesting the

authority to waive sovereign immunity in Congress in

the first place.

It would equally undermine congressional authority for courts to invoke the so-called “sovereign immunity canon” before completing a comprehensive analysis

of “the language of the statute.” FAA v. Cooper, 566

U.S. 284, 289-90 (2012). Because “the power to waive

the federal government’s immunity is Congress’s prerogative, not [this Court’s],” when an “‘unmistakably

clear’ waiver of sovereign immunity appears in a statute,” no extrinsic sources like substantive canons of

3

construction or legislative history “can dislodge it.”

Kirtz, 601 U.S. at 48-49 (quoting Dellmuth v. Muth,

491 U.S. 223, 230 (1989)). The inquiry into sovereign

immunity thus, first and foremost, always “trains on

statutory text,” id. at 49, and courts should not “wave

the ambiguity flag” before “exhaust[ing] all the traditional tools of [textual] construction,” Kisor v. Wilkie,

588 U.S. 558, 575 (2019) (quotation marks omitted). In

other words, a court may not put a thumb on the scale

in favor of immunity when a waiver of immunity is

“clearly discernable from the statutory text in light of

traditional interpretive tools.” Cooper, 566 U.S. at

291.

In this particular case, it is difficult to imagine

how the scope of the waiver of the United States’ immunity in the Equal Access to Justice Act (EAJA)

could be more “clearly discernable from the statutory

text in light of traditional interpretive tools,” id. The

EAJA authorizes the award of fees and other expenses

to a prevailing 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.”

28 U.S.C. § 2412(d)(1)(A) (emphasis added). At the

time the EAJA was enacted, the term “civil action” covered “all types of actions other than criminal proceedings,” Black’s Law Dictionary 222 (5th ed. 1979), and

the statute’s inclusion of the term “any” made explicit

that it truly meant “every” and “all” civil actions, Webster’s Ninth New Collegiate Dictionary 93 (1983). Combine that with the EAJA’s one explicit exception for

“cases sounding in tort,” 28 U.S.C. § 2412(d)(1)(A), and

it becomes unmistakably clear from the “sum total” of

Congress’s work, Exxon Mobil Corp. v. Corporación Cimex, S. A. (Cuba), 146 S. Ct. 1909, 1923 (2026), that

any civil action—even one with arguably unique

4

features—is covered by the EAJA’s waiver so long as

it is not one “sounding in tort.”

Habeas corpus petitions seeking relief from civil

immigration detention plainly qualify as “civil actions”

that fall within the scope of that expressly broad

waiver. Since the era of Blackstone, the writ of habeas

corpus has been considered a civil action that seeks to

remedy the “private wrong[] or civil injur[y]” of deprivation of “personal liberty.” 3 William Blackstone,

Commentaries *118-19, *129 (emphasis added).

In attempting to argue otherwise, Respondents

make two fundamental errors. First, they misinterpret this Court’s precedents. The cases upon which

they primarily rely—Schlanger v. Seamans, 401 U.S.

487 (1971), and Harris v. Nelson, 394 U.S. 286

(1969)—both made clear that habeas corpus proceedings are civil actions, even as they declined, based on

particular features of the statutes or rules under consideration, to apply those statutes or rules to habeas

actions. Moreover, after Harris and Schlanger, and

just two years before the EAJA was enacted in 1980,

this Court doubled down on its characterization of habeas corpus as a civil action, deeming the principle

“well settled.” Browder v. Dir., Dep’t of Corr. of Ill.,

434 U.S. 257, 269 (1978).

Second, Respondents urge this Court to use the

sovereign-immunity canon to construe the EAJA’s

broad and unambiguous waiver in an artificially narrow fashion from the get-go. Like the Fourth Circuit,

see Obando-Segura v. Garland, 999 F.3d 190 (4th Cir.

2021); O’Brien v. Moore, 395 F.3d 499 (4th Cir. 2005),

Respondents assert that application of this substantive canon of strict construction combined with statements that this Court has made about the “unique” nature of habeas corpus proceedings injects ambiguity

into the question whether Congress really meant what

5

it said—“any civil action,” 28 U.S.C. § 2412(d)(1)(A)

(emphasis added)—when it wrote that broad phrase

into the EAJA. See Resp. Cert. Br. 5-6 (quoting Harris,

394 U.S. at 294); see also Brief for Appellants at 16-17,

32-33, Michelin v. Warden Moshannon Valley Corr.

Ctr., 169 F.4th 418 (3d Cir. 2026) (No. 24-3198), Dkt.

No. 14 [hereinafter “Gov’t Abioye Br.”]; Appellants’ Petition for Rehearing En Banc at 7-9, Daley v. Ceja, 158

F.4th 1152 (10th Cir. 2025) (No. 24-1191), Dkt. No.

106-1 [hereinafter “Gov’t Daley Pet.”].

That approach turns textualism on its head and

undermines Congress’s exclusive prerogative over

waivers of sovereign immunity. Rather than interpret

the language of the statute that Congress has written

and ensure that it clearly waives sovereign immunity

for habeas corpus, Respondents would have this Court

begin its analysis from a position of skepticism—that

Congress could not have possibly meant to include habeas within the unambiguously broad scope of the

EAJA’s waiver because habeas has certain unique features. But a “unique” civil action is still “any civil action” within the plain meaning of the EAJA’s unambiguous text. To hold otherwise would give courts license under the guise of the sovereign-immunity

canon to effectively rewrite the EAJA, “arrogating legislative power” along the way, Hernandez v. Mesa, 589

U.S. 93, 100 (2020). This Court should reject Respondents’ invitation to infringe on Congress’s authority in

such fashion.

ARGUMENT

I.

The Decision Whether to Waive the Federal

Government’s Sovereign Immunity Belongs

to Congress.

Since the earliest invocations of the sovereign immunity doctrine, this Court has recognized that only

6

Congress, as the institution composed of the people’s

representatives, has the power to decide whether to

waive the United States’ sovereign immunity. In justifying this rule, this Court has often spoken of the

gravity of the decision to allow a private individual to

vindicate his or her own private interests against the

entity entrusted with protection of the greater public,

as well as the risk that allowing such private litigation

might divert government resources away from pursuit

of the public welfare. See, e.g., The Siren, 74 U.S. (7

Wall.) 152, 154 (1868) (warning that “the public service would be hindered, and the public safety endangered, if the supreme authority could be subjected to

suit at the instance of every citizen, and consequently

controlled in the use and disposition of the means required for the proper administration of the government”); Great N. Life Ins. Co. v. Read, 322 U.S. 47, 53

(1944) (“The principle of immunity from litigation assures the states and the nation from unanticipated intervention in the processes of government.”). Decisions involving such matters, according to this Court,

are squarely within Congress’s “bailiwick,” and thus

Congress is “[t]he right governmental actor” to determine whether “to waive immunity.” Thacker v. Tenn.

Valley Auth., 587 U.S. 218, 226 (2019).

To vindicate that principle, this Court has been

clear that courts should not second-guess Congress’s

decision to waive immunity. After all, while private

suits risk interfering with governmental functions,

those risks must be weighed against the fundamental

principle, dating at least to Marbury v. Madison, 5

U.S. (1 Cranch) 137 (1803), that “[t]he very essence of

civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever

he receives an injury.” Id. at 163. Our constitutional

structure manifests a strong interest in permitting

7

individuals to sue the government “where [their] federally protected rights have been invaded.” Bell v.

Hood, 327 U.S. 678, 684 (1946). Thus, “once Congress

has acted to permit the claim of the aggrieved against

the sovereign to be pursued in a judicial forum”—having determined that for a particular area of law, any

threat of private litigation disrupting government is

outweighed by the need for a remedy—“courts should

not frustrate the legislative promise of relief by reconstructing a broader scope of immunity through a hostile and narrow construction of the statute.” Gregory

C. Sisk, Twilight for the Strict Construction of Waivers

of Federal Sovereign Immunity, 92 N.C. L. Rev. 1245,

1252 (2014). After all, “[i]t is one thing to regard government liability as exceptional enough to require

clarity of creation as a matter of presumed legislative

intent,” yet it “is quite something else to presume that

a legislature that has clearly made the determination

that government liability is in the interest of justice

wants to accompany that determination with nit-picking technicalities that would not accompany other

causes of action.” Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 285

(2012).

This makes sense not just as a principle of statutory interpretation, but also as a matter of separation

of powers. Elevating “nit-picking technicalities,” id.,

over the ordinary meaning of a statute’s language

would empower judges to effectively rewrite the words

that Congress passed. That surely “violates the baseline rule of legislative supremacy” in our constitutional

system, Amy C. Barrett, Substantive Canons and

Faithful Agency, 90 B.U. L. Rev. 109, 167 (2010), which

gives judges the power only to “implement Congress’s

choices rather than remake them,” Health & Hosp.

Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 178

8

(2023); see FS Credit Opportunities Corp. v. Saba Cap.

Master Fund, Ltd., 146 S. Ct. 1546, 1553 (2026) (“Rather than augmenting statutes, we interpret them.”).

Put another way, if the primary constitutional

“justification for sovereign immunity is to allow Congress to determine the appropriate balance between

protecting government policymaking and providing

remedies to those injured by government actions,”

then “the object of interpreting statutory waivers of

sovereign immunity should be to ascertain and implement the deliberate balance achieved by Congress.”

John Copeland Nagle, Waiving Sovereign Immunity in

an Age of Clear Statement Rules, 1995 Wis. L. Rev.

771, 818. This approach is particularly important

given the myriad policy considerations and conflicting

interests that go into a congressional decision to waive

sovereign immunity—interests that Congress, more so

than this Court, is positioned to reconcile. See, e.g.,

Harold J. Krent, Reconceptualizing Sovereign Immunity, 45 Vand. L. Rev. 1529, 1531 (1992) (“The dominant

justification for sovereign immunity must be that we

trust Congress, unlike any other entity, to set the rules

of the game.”).

This Court’s recent sovereign immunity precedents reflect that understanding. For instance, in

Kirtz, this Court unanimously rejected the Department of Agriculture’s invitation to impose a “‘magicwords’ requirement” on the Fair Credit Reporting Act’s

waiver of sovereign immunity, effectuated through two

separate statutory provisions enacted at different

times but which, read together, unambiguously abrogated the United States’ immunity. 601 U.S. at 54. “‘If

no magic words are required’ to waive sovereign immunity, then the clarity of ‘each statute must be evaluated on its own terms,’” this Court explained. Id. at

52 (quoting Pennsylvania v. Union Gas Co., 491 U.S.

9

1, 13 n.4 (1989)). Failing to respect Congress’s choices

reflected in the clear statutory text, this Court cautioned, would impermissibly usurp congressional authority—it “would effectively ‘negat[e]’ suits Congress

has clearly authorized.” Id. at 51 (alteration in original) (quoting Fin. Oversight & Mgmt. Bd. for P.R. v.

Centro de Periodismo Investigativo, Inc., 598 U.S. 339,

348 (2023)). This Court has emphasized this point

again and again in its recent sovereign immunity decisions. See, e.g., Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382,

391 (2023) (explaining that imposing a magic-words

requirement “risks upending [Congress’s] policy

choices that [the relevant statute] embodies in this regard”); Exxon Mobil, 146 S. Ct. at 1924 (“[T]his Court’s

precedents repeatedly emphasize that Congress does

not need to use ‘magic words’ to abrogate sovereign immunity.” (quoting Kirtz, 601 U.S. at 48)).

Consistent with its insistence on fidelity to statutory text, this Court long ago discarded the rule that

legislative history can create ambiguity in a statute

that plainly waives immunity. See, e.g., United States

v. Nordic Vill., Inc., 503 U.S. 30, 37 (1992) (noting that

“legislative history has no bearing on the ambiguity

point” in a sovereign immunity inquiry); Milner v.

Dep’t of Navy, 562 U.S. 562, 574 (2011) (“Legislative

history, for those who take it into account, is meant to

clear up ambiguity, not create it.”). Focusing on text

rather than legislative history allows people “to rely on

the law as written, without fearing that courts might

disregard its plain terms based on some extratextual

consideration.” Bostock v. Clayton County, 590 U.S.

644, 674 (2020). That principle is especially important

in the context of sovereign immunity, a rule designed

to protect the interests of the people as a whole and to

10

give way when Congress determines that allowing suit

furthers the public interest.

In a similar vein, although this Court typically resolves unclear statutes in favor of the sovereign, such

“‘rules of thumb’ give way when ‘the words of a statute

are unambiguous.’” Sebelius v. Cloer, 569 U.S. 369,

381 (2013) (quoting Conn. Nat’l Bank v. Germain, 503

U.S. 249, 253-54 (1992)). This Court has only resorted

to the so-called “sovereign immunity canon” when it

has confronted ambiguity in the plain text of a statute

after applying all the “traditional tools of statutory

construction.” See, e.g., Richlin Sec. Serv. Co. v.

Chertoff, 553 U.S. 571, 589-90 (2008) (declining to apply “sovereign immunity canon” because “there is no

ambiguity left for us to construe”); U.S. Dep’t of Energy

v. Ohio, 503 U.S. 607, 626-27 (1992) (invoking sovereign-immunity canon only after traditional tools of

statutory interpretation left the Court “with an unanswered question”); Ardestani v. INS, 502 U.S. 129,

136-37 (1991) (same). Thus, even though “[t]he standard for finding a congressional abrogation is stringent,” if the “‘language of the statute’” amounts to an

“‘unequivocal’” abrogation, this Court must respect the

statutory text. Fin. Oversight & Mgmt. Bd. for P.R.,

598 U.S. at 346-47 (first quoting Kimel v. Fla. Bd. of

Regents, 528 U.S. 62, 73 (2000); and then Dellmuth,

491 U.S. at 232).

This means that the sovereign-immunity canon

has no role to play at the outset of a case. It does not

authorize courts to read statutory text in an artificially

“narrow[]” fashion. Richlin, 553 U.S. at 589. It does

not “displace[] the other traditional tools of statutory

construction” that, first and foremost, focus on analysis of statutory text. Id. Rather, this Court’s consistent approach to questions of sovereign immunity

has been to “simply” apply the “‘traditional’ tools of

11

statutory interpretation” to decide whether “Congress’s abrogation . . . is ‘clearly discernable’ from the

statute itself.” Lac du Flambeau, 599 U.S. at 388

(quoting Cooper, 566 U.S. at 291). If so, a court “need

look no further to resolve [the] case.” Kirtz, 601 U.S.

at 51.

That appropriately restrained approach to the sovereign-immunity canon reflects this Court’s understanding that Congress, not the courts, gets to decide

when the interest in vindicating individual rights outweighs the government’s interest in conducting its affairs free from the threat of litigation. As this Court

has recognized, such nuanced decisions should be left

in the hands of the people’s representatives—and Congress’s decisions are always best gleaned from the text

of the laws it passes.

II. This Court Should Respect Congress’s

Unambiguous Waiver of Sovereign

Immunity in the EAJA, Authorizing Fees

and Costs in “Any Civil Action.”

A. In this case, the statutory text could not be

clearer: under the EAJA, fees and costs may be recovered from the federal government by a prevailing party

in “any civil action (other than cases sounding in tort).”

28 U.S.C. § 2412(d)(1)(A) (emphasis added). “Any civil

action” plainly covers habeas actions seeking relief

from immigration detention.

Start with the plain meaning of the “key statutory

term[s] . . . at the time Congress enacted the statute.”

Wis. Cent. Ltd. v. United States, 585 U.S. 274, 277

(2018). In 1980, when Congress enacted the EAJA, it

was firmly established that the legal term of art “civil

action” included “all types of actions other than criminal proceedings.” Black’s Law Dictionary, supra, at

222; see, e.g., Ballentine’s Law Dictionary 202 (3d ed.

12

1969) (“comprehending every conceivable cause of action, whether legal or equitable, except such as are

criminal in the usual sense”). That broad definition

encompassed all actions brought to “enforce, redress,

or protect private rights.” Black’s Law Dictionary, supra, at 222. It was grounded in the common law and

centuries of precedent, see, e.g., 3 Blackstone, supra, at

*2 (distinguishing between “civil injuries,” which are

“an infringement or privation of the private or civil

rights belonging to individuals,” and “crimes or misdemeanors,” which are “a breach and violation of the

public rights and duties, which affect the whole community”); Wiscart v. Dauchy, 3 U.S. (3 Dall.) 321, 328

(1796) (“the term civil actions would, from its natural

import, embrace every species of suit, which is not of a

criminal kind”), and supported by contemporaneous

general-purpose dictionaries as well, see, e.g., Webster’s Ninth New Collegiate Dictionary, supra, at 244

[hereinafter Webster’s] (defining “civil” as “relating to

private rights and to remedies sought by action or suit

distinct from criminal proceedings”).

The EAJA’s usage of “any” underscores the

breadth with which the term “civil action” should be

read. Meaning “every” and “all,” Webster’s, supra, at

93, or “without restriction or exception,” The American

Heritage Dictionary 117 (2d Coll. Ed. 1982), “the word

‘any’ naturally carries ‘an expansive meaning,’” SAS

Inst., Inc. v. Iancu, 584 U.S. 357, 362-63 (2018) (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997)). It

refers to “every member of the class or group,” without

“distinction or limitation.” Id. at 363 (internal quotation marks omitted). Thus, this Court has emphasized

that where Congress employs the word “any” before a

statutory term, there is “no indication whatever that

Congress intended [a] limiting construction” of that

term. Harrison v. PPG Indus., Inc., 446 U.S. 578, 589

13

(1980); see, e.g., Ali v. Fed. Bureau of Prisons, 552 U.S.

214, 220 (2008) (“Congress’ use of ‘any’ to modify ‘other

law enforcement officer’ is most naturally read to

mean law enforcement officers of whatever kind.”).

To be sure, Congress did exempt “cases sounding

in tort” from the award of fees and costs under the

EAJA. 28 U.S.C. § 2412(d)(1)(A). But that exception

only confirms that every other kind of civil action, including habeas actions, is subject to awards under the

EAJA. After all, “[w]hen Congress provides exceptions

in a statute,” the “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). Courts do not “have

authority to create others.” Id.

B. Respondents do not contest any of this. Rather,

they insist—like the Fourth Circuit in O’Brien and

Obando-Segura—that despite the broad sweep of the

word “any” and the EAJA’s express carveout only for

tort suits, a habeas proceeding is “unique” enough under this Court’s precedents that it is somehow no

longer a “civil action” when the EAJA is “strictly construed in favor of the United States.” Resp. Cert. Br.

5-7 (internal quotations omitted); see also Gov’t Abioye

Br. at 16-17, 32-33; Gov’t Daley Pet. at 7-9. This is

doubly wrong.

1. First, habeas actions are unequivocally “civil

actions” under the ordinary meaning of that term and

were considered “civil actions” when the EAJA was enacted. Begin with the rich historical tradition of habeas corpus, in which the writ was overwhelmingly regarded as civil. In his Commentaries, Blackstone described habeas as a remedy to redress the “private

wrong[] or civil injur[y]” of deprivation of “personal liberty.” 3 Blackstone, supra, at *118-19, *129 (emphasis

added). After the Founding, this Court adopted

14

Blackstone’s view that habeas was civil, reasoning

that “[t]he writ of habeas corpus is the remedy which

the law gives for the enforcement of the civil right of

personal liberty,” and “[p]roceedings to enforce civil

rights are civil proceedings.” Ex parte Tom Tong, 108

U.S. 556, 559 (1883).

This Court has consistently maintained that view,

even in the cases cited by Respondents and relied upon

by the Fourth Circuit. For instance, in Schlanger, this

Court recognized that “habeas corpus is technically

‘civil,’” even as it reasoned that a provision of the venue

statute that applied to “a ‘civil action in which each

defendant is an officer or employee of the United

States’” was inapplicable to habeas because the statute’s “legislative history . . . [was] barren of any indication” that Congress intended to extend it to habeas.

401 U.S. at 490 n.4 (quoting 28 U.S.C. § 1391(e) (1964

ed.)).

Schlanger is a relic from another era—this Court

no longer allows legislative history to “muddy the

meaning of clear statutory language,” Kirtz, 601 U.S.

at 49 (quoting Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427, 436 (2019)). And in any event, the legislative history of the venue statute obviously has no

bearing on the question of how to interpret the term

“civil action” in the context of the EAJA. What is more,

the presence of “any” before “civil action” in the EAJA

distinguishes it from the venue statute at issue in

Schlanger, indicating that the phrase “civil action”

should be given its complete scope in the EAJA, including those civil actions, like habeas, with unique features.

Much like Schlanger, Harris also acknowledged

that “habeas corpus proceedings are characterized as

‘civil,’” 394 U.S. at 293, even as it held that Rule

81(a)(2) of the Federal Rules of Civil Procedure did not

15

authorize a habeas petitioner to propound interrogatories—again, largely based on the “intent of the draftsmen” of that Rule, id. at 295. To be sure, the Court

also described the label “civil” as “gross and inexact,”

and suggested that habeas proceedings are “unique.”

Id. at 293-94 (footnote omitted). But a “unique” civil

action is still a civil action. And in any event, those

comments were unnecessary to the disposition of the

issue before the Court, which concerned the applicability only of a particular rule to habeas proceedings. Id.

If anything, the Court implied that habeas retained a

time-honored place in the civil litigation tradition by

acknowledging that other Federal Rules of Civil Procedure did apply to habeas proceedings, id. at 294 n.5,

and that the writers of the 1938 Rules had simply chosen not to extend the “innovation[]” of interrogatories

to habeas actions, id. at 292-96.

Wisely, Respondents do not cite Browder v. Director, Department of Correction of Illinois, 434 U.S. 257

(1978), or O’Neal v. McAninch, 513 U.S. 432 (1995),

which the Fourth Circuit wrongly concluded supported

its position, see O’Brien, 395 F.3d at 506-07. O’Neal,

for its part, repeatedly emphasized that “habeas is a

civil proceeding” even though “someone’s custody, rather than mere civil liability, is at stake.” 513 U.S. at

440. Browder—decided just two years before the

EAJA was passed—stated that “[i]t is well settled that

habeas corpus is a civil proceeding,” and while, as in

Harris and Schlanger, this Court acknowledged that

certain Federal Rules of Civil Procedure may not apply

to habeas actions based on the Rules’ own terms, this

Court ultimately held that the particular Civil Procedure Rules under consideration there did apply to habeas, 434 U.S. at 269-70.

Moreover, if there were any doubt that habeas actions are “civil actions” on their own terms under the

16

EAJA—and there should not be—the context of the

present case dispels it: Petitioner successfully sought

relief from immigration detention, not criminal detention. Immigration detention has long been considered

“civil, not criminal,” in nature. Zadvydas v. Davis, 533

U.S. 678, 690 (2001); see INS v. Lopez-Mendoza, 468

U.S. 1032, 1038 (1984) (a “deportation proceeding is a

purely civil action” and does not “punish the respondent for any crime”). Thus, habeas actions that challenge civil confinement—like immigration detention—

and succeed in restoring the detainee’s civil liberty are

unambiguously “civil actions.” As the Third Circuit

has put it, even if habeas actions could be considered

somewhat hybrid in nature, “[a] hybrid of a civil action

and a civil action is a civil action.” Michelin v. Warden

Moshannon Valley Corr. Ctr., 169 F.4th 418, 426 (3d

Cir. 2026).

2. Respondents’ second misstep lies in their effort

to use the sovereign-immunity canon at the outset of

the inquiry instead of invoking it only after demonstrating that the meaning of the EAJA’s text is ambiguous. Tellingly, Respondents never come out and say

that habeas actions are not civil actions. Nor could

they. Instead, they seize on language in this Court’s

decisions describing habeas as a “unique” civil action

or “technically” a civil action. Those modifiers, they

assert, combined with the sovereign-immunity canon,

require reading the EAJA’s unambiguously broad

phrase “any civil action” in an artificially narrow fashion that excludes habeas corpus because of its distinctive features.

That is precisely the approach that this Court rejected in Richlin, a case that also involved a provision

of the EAJA. The government there argued that “any

right to recover paralegal fees under [the] EAJA must

be read narrowly in light of the statutory canon

17

requiring strict construction of waivers of sovereign

immunity.” Richlin, 553 U.S. at 589. In “disagree[ing]” with that argument, this Court clarified

that resort to the sovereign-immunity canon is appropriate only “after a close reading of the statutory provision [leaves] the Court ‘with an unanswered question.’” Id. (quoting Dep’t of Energy, 503 U.S. at 62627). This Court cautioned that the sovereign-immunity canon does not authorize courts to adopt unduly

narrow readings of clear—and expansive—statutory

text. Id. Accordingly, because pursuant to the “traditional tools of statutory construction,” paralegal fees

were unambiguously “recoverable as attorney’s fees at

their ‘prevailing market rates’” under the EAJA, there

was no need for this Court “to resort to the sovereign

immunity canon.” Id. at 590 (quoting 5 U.S.C.

§ 504(b)(1)(A)).

So too here. The phrase “any civil action,” 28

U.S.C. § 2412(d)(1)(A), is not ambiguous. It means

civil actions of “every” type, Webster’s, supra, at 93,

“without restriction or exception,” The American Heritage Dictionary, supra, at 117. A “technically” civil

action is still a civil action. A “unique” civil action is

still a civil action. The only civil actions excluded from

the scope of the EAJA are those “sounding in tort”—

the sole explicit exception included in the text of 28

U.S.C. § 2412(d)(1)(A).

Thus, the sovereign-immunity canon cannot and

does not compel a narrow reading of the sweeping and

unambiguous waiver of the United States’ sovereign

immunity in the EAJA. To use the canon in that fashion would stand textualism on its head, undermining

the foundational principle that it is Congress, not

courts, that gets to decide when to untie the federal

purse strings through a waiver of sovereign immunity.

***

18

Because the text of the EAJA unambiguously covers “any civil action,” and a habeas petition seeking

relief from immigration detention is unambiguously a

type of civil action, this Court’s job is straightforward:

apply the plain meaning of the law that Congress

wrote. This Court should reject Respondents’ invitation to act “as a self-constituted guardian of the Treasury” by “import[ing] immunity back into a statute designed to limit it.” Indian Towing Co. v. United States,

350 U.S. 61, 69 (1955).

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1730 Rhode Island Ave. NW

Suite 1200

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

September 23, 2026

* Counsel of Record