Petition for Writ of Certiorari — Warden, Moshannon Valley Correctional Center, et al., Petitioners v. Adolph Michelin, et al.

No. XX-XX

In the Supreme Court of the United States

WARDEN, MOSHANNON VALLEY CORRECTIONAL

CENTER, ET AL., PETITIONERS

v.

ADOLPH MICHELIN

WARDEN, MOSHANNON VALLEY PROCESSING

CENTER, ET AL., PETITIONERS

v.

ADEWUMI ABIOYE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

D. JOHN SAUER

Solicitor General

Counsel of Record

BRETT A. SHUMATE

Assistant Attorney General

CURTIS E. GANNON

Deputy Solicitor General

FREDERICK LIU

Assistant to the

Solicitor General

SAMUEL P. GO

NICOLE P. GRANT

JOSEPH A. MCCARTER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the Equal Access to Justice Act’s limited

waiver of the United States’ sovereign immunity in “any

civil action (other than cases sounding in tort),” 28

U.S.C. 2412(d)(1)(A), unambiguously and unequivocally

encompasses petitions for writs of habeas corpus challenging immigration detention.

(I)

PARTIES TO THE PROCEEDINGS

In Michelin, petitioners (appellants below) are 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; and Attorney General,

United States of America. Respondent (appellee below)

is Adolph Michelin.

In Abioye, petitioners (appellants below) are 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; and Attorney General, United States of America. Respondent (appellee below) is Adewumi Abioye.

RELATED PROCEEDINGS

United States District Court (W.D. Pa.):

Michelin v. Oddo, No. 23-cv-22 (Aug. 26, 2024)

Abioye v. Oddo, No. 23-cv-251 (Sept. 26, 2024)

United States Court of Appeals (3d Cir.):

Michelin v. Warden, No. 24-2990 (Mar. 2, 2026)

Abioye v. Warden, No. 24-3198 (Mar. 2, 2026)

(II)

In the Supreme Court of the United States

No. XX-XX

WARDEN, MOSHANNON VALLEY CORRECTIONAL

CENTER, ET AL., PETITIONERS

v.

ADOLPH MICHELIN

WARDEN, MOSHANNON VALLEY PROCESSING

CENTER, ET AL., PETITIONERS

v.

ADEWUMI ABIOYE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General—on behalf of the Warden of

the Moshannon Valley Correctional Center and others

—respectfully petitions for a writ of certiorari to review

the judgments of the United States Court of Appeals for

the Third Circuit in these two cases. Pursuant to this

Court’s Rule 12.4, the government is filing a “single petition for a writ of certiorari” because the “judgments

* * * sought to be reviewed” are from “the same court

and involve identical or closely related questions.” Sup.

Ct. R. 12.4.

(1)

2

OPINIONS BELOW

In both cases, the opinion of the court of appeals

(App., infra, 1a-32a) is reported at 169 F.4th 418. In

Michelin, the order of the district court (App., infra,

52a-72a) is available at 2024 WL 3937228. In Abioye,

the opinion of the district court (App., infra, 33a-51a) is

available at 2024 WL 4304738.

JURISDICTION

In both cases, the judgment of the court of appeals

was entered on February 2, 2026. Petitions for rehearing were denied on March 2, 2026 (App., infra, 73a128a). On May 26, 2026, Justice Alito extended the time

within which to file a petition for a writ of certiorari to

and including June 30, 2026. On June 22, 2026, Justice

Alito further extended the time to and including July 30,

2026. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

The pertinent statutory provision, 28 U.S.C. 2412, is

reproduced in the appendix to this petition. App., infra,

129a-137a.

STATEMENT

1. The Equal Access to Justice Act (EAJA), Pub. L.

No. 96-481, Tit. II, 94 Stat. 2325, “renders the United

States liable for attorney’s fees for which it would not

otherwise be liable, and thus amounts to a partial waiver

of sovereign immunity,” Ardestani v. INS, 502 U.S. 129,

137 (1991). As relevant here, EAJA provides that ‘‘a court

shall award to a prevailing party * * * fees and other

expenses * * * 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

3

the United States was substantially justified.’’ 28 U.S.C.

2412(d)(1)(A).

2. a. Respondent Adolph Michelin is a citizen of Jamaica. App., infra, 5a. In 2010, he entered the United

States on a temporary visa. 2023 WL 5044929, at *1.

After he overstayed his visa, the Department of Homeland Security (DHS) initiated removal proceedings. Ibid.

In 2017, an immigration judge (IJ) ordered Michelin’s

removal to Jamaica, and the Board of Immigration Appeals (Board) affirmed. Ibid. In January 2022, DHS detained Michelin under 8 U.S.C. 1231(a)(6). 2023 WL

5044929, at *1-*2. DHS made arrangements for Michelin’s removal in March 2022, but before DHS could effectuate his removal, Michelin filed a motion with the

Board to reopen his removal proceedings, and the Board

granted a stay of removal. Id. at *2.

In February 2023, Michelin filed a petition for a writ

of habeas corpus under 28 U.S.C. 2241 in the United

States District Court for the Western District of Pennsylvania, contending that his detention without a bond

hearing violated the Due Process Clause. 2023 WL

5044929, at *3. The district court granted the petition,

holding that due process entitled Michelin to a bond

hearing. Id. at *6-*8. An IJ conducted a bond hearing

and granted Michelin release on bond. App., infra, 6a.

In August 2024, the district court granted Michelin’s

motion for attorney’s fees under EAJA. App., infra, 52a72a. The court held that a habeas proceeding challenging immigration detention is a “civil action” under EAJA,

id. at 56a-59a, and that the government’s position had not

been “substantially justified,” id. at 59a-65a. The court

ordered the government to pay $15,841.60. Id. at 72a.

b. Respondent Adewumi Abioye is a native and citizen of Nigeria. 704 F. Supp. 3d 625, 628. In 2018, he

4

entered the United States on a temporary visa. Ibid. In

2020, after overstaying his visa, he was convicted of conspiring to commit wire fraud, in violation of federal law.

Ibid. In May 2022, after Abioye finished serving his

federal sentence, DHS initiated removal proceedings

and detained him under 8 U.S.C. 1226(c). 704 F. Supp.

3d at 628-629. An IJ ordered Abioye’s removal to Nigeria, and the Board affirmed. Id. at 628. Abioye filed a

petition for review in the Fourth Circuit, which stayed

his removal. Ibid.

In October 2023, while his petition for review was

pending, Abioye filed a habeas petition under Section

2241 in the United States District Court for the Western District of Pennsylvania, contending that his detention without a bond hearing violated the Due Process

Clause. 704 F. Supp. 3d at 629. The district court granted

the habeas petition, concluding that due process entitled Abioye to a bond hearing. Id. at 632. An IJ conducted a bond hearing and granted Abioye release on

bond. App., infra, 5a.

In September 2024, the district court granted Abioye’s

motion for attorney’s fees under EAJA. App., infra, 33a51a. The court held that a habeas proceeding challenging immigration detention is a “civil action” under EAJA,

id. at 37a-40a, and that the government’s position had not

been “substantially justified,” id. at 41a-47a. The court

ordered the government to pay $18,224.58. Id. at 50a.

3. The Third Circuit consolidated the government’s

appeals in both respondents’ cases and affirmed the grant

of attorney’s fees in each case. App., infra, 1a-32a. The

court held that “[t]he phrase ‘any civil action (other than

cases sounding [in] tort)’ in the EAJA unambiguously

encompasses habeas challenges to immigration detention under [Section] 2241.” Id. at 7a. The court acknowl-

5

edged that because “[t]he EAJA’s fee award provision

is a statutory waiver of sovereign immunity,” “the phrase

‘any civil action’ ” must be construed “to exclude” habeas actions if the phrase is “ambiguous.” Id. at 8a. The

court also acknowledged that “in some instances, the

phrase ‘civil action’ does not cover habeas actions.” Id.

at 7a. The court nevertheless concluded that “ ‘civil action’ in the EAJA clearly encompasses habeas challenges to immigration detention under [Section] 2241.”

Id. at 17a. In so concluding, the court recognized that

“[t]he Fourth and Fifth Circuits have held habeas proceedings are not clearly EAJA ‘civil actions,’ ” id. at 22a,

but it declined to follow the reasoning of those other circuits, id. at 22a-24a.

4. The government petitioned for rehearing en banc,

which was denied by the court of appeals. App., infra,

73a-128a. Judge Bove, joined by three other judges, dissented from that denial. Id. at 75a-125a. In their view,

the court’s decision put the Third Circuit “on the wrong

side of a Circuit split regarding the government’s sovereign immunity from EAJA fee awards in habeas proceedings initiated by aliens.” Id. at 79a. Judge Mascott

also dissented from the denial of rehearing en banc. Id.

at 126a-128a. In her view, the “deep circuit split” on the

issue “belies [the] clarity” necessary to find a waiver of

sovereign immunity. Id. at 126a.

REASONS FOR GRANTING THE PETITION

The court of appeals held that EAJA’s limited waiver

of the United States’ sovereign immunity in “any civil

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

2412(d)(1)(A), unambiguously encompasses petitions for

writs of habeas corpus challenging immigration detention. App., infra, 7a. This Court has already granted

certiorari in Montoya Palacios v. Liggins, No. 25-1223

6

(June 29, 2026), to consider whether that interpretation

of EAJA is correct. The Court should accordingly hold

this petition for a writ of certiorari pending its decision

in Montoya Palacios and then dispose of the petition as

appropriate in light of that decision.

CONCLUSION

The petition for a writ of certiorari should be held

pending this Court’s decision in Montoya Palacios v.

Liggins, cert. granted, No. 25-1223 (June 29, 2026), and

then disposed of as appropriate in light of that decision.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

BRETT A. SHUMATE

Assistant Attorney General

CURTIS E. GANNON

Deputy Solicitor General

FREDERICK LIU

Assistant to the

Solicitor General

SAMUEL P. GO

NICOLE P. GRANT

JOSEPH A. MCCARTER

Attorneys

JULY 2026

APPENDIX

TABLE OF CONTENTS

Page

Appendix A — Court of appeals opinion (Feb. 2, 2026) .......... 1a

Appendix B — Abioye district court memorandum

opinion (Sept. 26, 2024)........................... 33a

Appendix C — Michelin district court memorandum

and order (Aug. 26, 2024) ....................... 52a

Appendix D — Court of appeals order denying

rehearing en banc (Mar. 2, 2026)........... 73a

Appendix E — Statutory provision:

28 U.S.C. 2412 ....................................... 129a

(I)

APPENDIX A

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

Argued: Nov. 10, 2025

Opinion Filed: Feb. 2, 2026

Appeal from the United States District Court

for the Western District of Pennsylvania

(1a)

2a

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

Magistrate Judges: Honorable Patricia L. Dodge and

Honorable Christopher B. Brown

OPINION OF THE COURT

Before: RESTREPO, MCKEE, and AMBRO, Circuit Judges

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 mideighteenth 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 vio-

3a

lated, the prisoner could petition a court to “remov[e]

the injury of unjust and illegal confinement,” id. at 137

(emphasis omitted), by “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) (“Ha-

4a

beas proceedings, for those new to the area, are civil in

nature.”).1

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 immigraOn 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).

1

5a

tion detention at the Moshannon Valley 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 under § 2241 from the U.S.

District Court for the Western District of Pennsylvania.

It granted his petition, holding his prolonged detention

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

Correctional Facility; otherwise, he was held at Moshannon.

2

6a

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:

[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 po-

7a

sition 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 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.

8a

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 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

9a

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 (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

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”).

3

10a

(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 . . . 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 ac-

11a

tions 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)

(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 proceedToday, 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.

4

12a

ings 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 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.

13a

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”).

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

14a

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 ‘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 com-

15a

pleted 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 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

16a

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[.]”).

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 AccordA 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.

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

5

17a

ingly, 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 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

and Stafford—which expressly recognized habeas is civil—are

years closer to the EAJA’s enactment.

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?

18a

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” 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.

19a

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).

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.

20a

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

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

21a

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” 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 an-

22a

other 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 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

23a

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 SoteloAquije 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 (4th Cir. 2021). The ObandoSegura 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 be-

24a

tween 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 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.

25a

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.

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

26a

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 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).

27a

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 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

28a

prolonged his detention, we do “not hold an alien’s goodfaith 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 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.

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.

8

29a

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 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.

30a

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 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 Govern-

31a

ment’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 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.

32a

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 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.

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APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOHNSTOWN DIVISION

Civil Action No. 3:23-cv-0251

ADEWUMI ABIOYE, PETITIONER

v.

LEONARD ODDO, IN HIS OFFICIAL CAPACITY AS

WARDEN OF THE MOSHANNON VALLEY PROCESSING

CENTER, CAMILLA WAMSLEY, IN HER OFFICIAL

CAPACITY AS ACTING FIELD OFFICE DIRECTOR OF THE

IMMIGRATION AND CUSTOMS ENFORCEMENT,

ENFORCEMENT AND REMOVAL OPERATIONS,

PHILADELPHIA FIELD OFFICE; ALEJANDRO MAYORKAS,

IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE

DEPARTMENT OF HOMELAND SECURITY; AND

MERRICK GARLAND, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES,

RESPONDENTS

Filed: Sept. 26, 2024

MEMORANDUM OPINION 1

The parties consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case, including the

entry of final judgment, as authorized by 28 U.S.C. § 636. The case

was originally assigned to Magistrate Judge Cynthia Reed Eddy.

Due to the retirement of Judge Eddy, the case was reassigned to the

undersigned.

1

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CHRISTOPHER B. BROWN, United States Magistrate

Judge

Before the Court is the Motion for Attorneys’ Fees

and Expenses Under the Equal Access to Justice Act

(“EAJA”) filed by Petitioner Adewumi Abioye (“Abioye”). ECF No. 25. The motion has been fully briefed.

ECF Nos. 27 and 31. For the reasons set forth below,

the motion will be granted.

I. Background

This case arises from Respondents’ detention of Abioye pending adjudication of his immigration removal proceedings. The pertinent facts can be simply stated:

Abioye is a citizen and national of Nigeria. ECF No.

1-4. He entered the United States on or about April 29,

2018, as a nonimmigrant visa entry/B2 visitor for pleasure. Id. He remained in the United States without authorization after his visa expired. In July 2020, Abioye

pled guilty in the United States District Court for the District of Maryland of conspiracy to commit wire fraud in

violation of 18 U.S.C. §§ 1349 and 1343. ECF No. 1, ¶ 22.

On May 13, 2022, Abioye received a sentence of 27

months. ECF No. 25. On May 20, 2022, ICE served

Abioye a Notice to Appear which stated that he was removable due to his conviction of conspiracy to commit

wire fraud and that he had overstayed his B2 visa. ECF

No. 1, ¶ 25. On the same day of his release from criminal

custody, he was transferred to ICE custody and was civilly detained without bond under 8 U.S.C. § 1226(c)

35a

based on his conviction of conspiracy to commit wire

fraud.2

Abioye retained Attorney Daniel Melo from Capital

Area Immigrants’ Rights (CAIR) Coalition, who appeared with Abioye at his preliminary hearing in the

Cleveland Immigration Court on July 27, 2022. 3 ECF

No. 25, at 2. The Immigration Judge ordered Abioye

removed to Nigeria. Id. The Board of Immigration Appeals denied Abioye’s appeal on May 23, 2023. On June

22, 2023, Abioye, through counsel, filed a petition for review and a stay of removal in the United States Court of

Appeals for the Fourth Circuit. Id., at 3. The Court of

Appeals for the Fourth Circuit granted a Stay of Removal during the pendency of his petition for review. Id.

According to the public docket, oral argument on Abioye’s appeal is tentatively scheduled during the appellate court’s December 10-13, 2024, argument session.

See Abioye v, Garland, No. 23-1663 (4th Cir.), https://ca4

-ecf.sso.dcn/cmecf/jsp/CaseSummary.jsp (last reviewed

9/26/2024).

On October 12, 2023, Abioye filed in this Court a petition for writ of habeas corpus under 28 U.S.C. § 2241

2

Under 8 U.S.C. § 1226(c), “[t]he Attorney General shall take

into custody any alien” who is inadmissible or deportable on the

basis of enumerated categories of crimes and terrorist activities.

Id. § 1226(c)(1). By its terms, § 1226(c) does not entitle detainees

to a bond hearing. Release is authorized “only if the Attorney General decides . . . that release of the alien from custody is necessary” for witness-protection purposes “and the alien satisfies the

Attorney General that the alien will not pose a danger to the safety

of others or of property and is likely to appear for any scheduled

proceeding.” Id. § 1226(c)(2).

3

CAIR Coalition is a 401(c)(3) nonprofit organization, which provides pro bono legal services. ECF 25, at 4.

36a

challenging his continued detention without an individualized bond hearing as a violation of the Due Process

Clause of the Fifth Amendment. ECF No. 1. The Government opposed Abioye’s request for a bond hearing.

ECF No. 14. On November 29, 2023, applying the fourfactor test set forth in German Santos v. Warden Pike

Cnty Corr. Facility, 965 F.3d 203, 210-11 (3d Cir. 2020),

the Court granted the writ and ordered that an immigration judge conduct an individualized bond hearing. 4

ECF Nos. 17 and 23. That bond hearing was held on

December 11, 2023. ECF No. 24. The immigration

judge found Abioye was neither a danger to the community nor a flight risk and released Abioye on a $5,000

bond. Id. Upon release, he had spent more than 18

months in civil detention. As of January 9, 2024, Abioye

was residing in Silver Spring, Maryland. ECF No. 251, ¶ 1.

Now before the Court is Abioye’s motion requesting

an award of attorneys’ fees and other expenses under

the EAJA. ECF No. 25. In support, Abioye has submitted a number of documents including his own Declaration as well as the Declaration of Attorney Daniel Melo

and the Order of the Immigration Judge entered December 11, 2023. ECF No. 25.

Those factors are: (1) the duration of the detention, which the

Third Circuit Court of Appeals has identified as the “most important factor;” (2) whether the detention is likely to continue;

(3) the reasons for any delay; and (4) whether the conditions under

which the alien is confined differ meaningfully from criminal punishment.

4

37a

II. Discussion

The Equal Access to Justice Act (“EAJA”), 28 U.S.C.

§ 2412, provides, in relevant part:

Except as otherwise specifically provided by statute,

a court shall award to a prevailing party other than

the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a),

incurred by that party in any civil action (other than

cases sounding in tort), including proceedings for judicial review of agency action, brought by or against

the United States in any court having jurisdiction of

that action, 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) (emphasis added). Three of

these provisions are at issue in this case: first, whether

the underlying action is a “civil action” for the purposes

of the EAJA; second, whether the position of the United

States was substantially justified; and third, whether special circumstances make an award unjust. 5 ECF No. 27.

A. Habeas Proceeding Challenging Immigration

Detention Is A “Civil Action” Under The EAJA

As noted, the EAJA applies to “any civil action (other

than cases sounding in tort), including proceedings for

judicial review of agency action, brought by or against

the United States in any court having jurisdiction of that

action.” 28 U.S.C. § 2412(d)(1)(A). “On its face, the term

‘any civil action’ would seem to include habeas petitions,

which ordinarily qualify as civil actions.” Vacchio v.

Respondents do not dispute that Abioye is the prevailing party

in the habeas proceeding, or challenge the timeliness of the request

for fees or the reasonableness of the fees and costs requested.

5

38a

Ashcroft, 404 F.3d 663, 667 (2d Cir. 2005) (citing Zadvydas

v. Davis, 533 U.S. 678, 690 (2001) (noting, in a case stemming from a habeas petition challenging immigration

detention, that “[t]he proceedings at issue here are civil,

not criminal”)). Notably, neither the Supreme Court of

the United States nor the Court of Appeals for the Third

Circuit has addressed whether a civil habeas action challenging detention is a “civil action” under the EAJA.

The Court of Appeals for the Third Circuit, however, has

adjudicated motions for attorneys’ fees in immigration

habeas cases without questioning whether such cases

fall outside the ambit of the EAJA. See Kiareldeen v.

Ashcroft, 273 F.3d 542 (3d Cir. 2001) (considering the

merits of a motion for attorney’s fees under the EAJA

in a habeas case filed by a noncitizen challenging the

constitutionality of his immigration detention) and German Santos v. Warden Pike County Correctional Facility, No. 19-2663 (3d Cir. Feb. 19, 2021) (docket entry 98)

(approving the parties’ stipulation to award attorney’s

fees in the amount of $31,305.00 under the EAJA). Additionally, district courts within this Circuit have found

that the EAJA applies to a § 2241 habeas action challenging immigration-related detention. See Michelin v.

Oddo, Case No. 3:23-cv-22, 2024 WL 3937228 (W.D. Pa.

Aug. 26, 2024); Sisiliano-Lopez v. Lowe, 448 F. Supp. 3d

419 (M.D. Pa. 2020) (granting in part motion for attorney’s fees under the EAJA without questioning whether

EAJA applies)); Ildefonso-Candelario v. Lowe, Case

No. 3:16-2120, 2017 WL 4310078, *2 (M.D. Pa. Sept. 28,

2017) (stating “[t]his court has repeatedly found that the

EAJA applies to a § 2241 habeas action challenging immigration-related detention.”) (citations omitted).

The courts of appeal that have addressed whether

immigration habeas cases are “civil actions” under the

39a

EAJA are divided. The Second and Ninth Circuits have

held that an immigration habeas case proceeding is a

“civil action” under the EAJA. See Vacchio v. Ashcroft,

404 F.3d 663, 670-72 (2d Cir. 2005) (“civil actions” under

EAJA encompass immigration habeas proceedings),

and In re Petition of Hill, 775 F.2d 1037, 1040-41 (9th

Cir. 1985) (habeas action by an alien seeking admission

to the United States compensable under the EAJA). In

contrast, the Fourth and Fifth Circuits have held that

all habeas petitions, those challenging immigration detention and those challenging criminal detention, are

“hybrid” in nature and for this reason do not fall under

the EAJA’s “any civil action” provision. See Obando-Segura v. Garland, 999 F.3d 190, 192 (4th Cir. 2021) and

Barco v. Witte, 65 F.4th 782, 785 (5th Cir. 2023), cert.

denied sub nom. Gomez Barco v. Witte, 144 S. Ct. 553

(2024).

After a careful review of the various court decisions,

including those Third Circuit decisions awarding fees

without questioning whether the EAJA applies, this

Court adopts the sound reasoning of the Second and

Ninth Circuits, as well as recent district court cases that

have held that immigration habeas cases are “civil actions” covered by the EAJA, and concludes that habeas

civil immigration proceedings fall squarely within the

EAJA’s “any civil action” provision. This conclusion is

consistent with the recognition that immigration proceedings themselves are civil in nature. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (noting, in an

immigration habeas case, that “[t]he proceedings at issue here are civil, not criminal”); Padilla v. Kentucky,

559 U.S. 356, 365 (2010) (“[R]emoval proceedings are

civil in nature”); German Santos, 965 F.3d at 211 (stating “[r]emoval proceedings are civil, not criminal”); Xu

40a

Yong Lu v. Ashcrof t, 259 F.3d 127, 131 (3d Cir. 2001)

(“Immigration proceedings, however, are civil, rather

than criminal, in nature . . . .). Moreover, the only type

of “civil actions” that are outside the ambit of the EAJA

are those “sounding in tort[.]” 28 U.S.C. § 2412(d)(1)(A).

As aptly noted by Judge Lynn Adelman, “If Congress

had intended to exclude habeas actions from the EAJA,

it would have done so as it excluded tort actions.” Kholyavskiy v. Schlecht, 479 F. Supp. 2d 897, 901 (E.D. Wis.

2007).

For these reasons, the Court agrees with Abioye that

this immigration habeas case challenging the legality of

his civil detention without a bond hearing qualifies as a

“civil action” under the EAJA.

The Court now turns to whether Abioye is eligible to

recover under the EAJA.

B. Eligibility To Recover Under The EAJA

In ruling on a request for fees and expenses pursuant

to the EAJA, a court must determine whether the requesting party is eligible for fees and the amount of requested fees is reasonable. A requesting party is eligible for an attorney’s fee award where: (1) the requesting

party is the prevailing party in a non-tort suit involving

the United States; 6 (2) the government’s position was

not substantially justified; (3) the fee petition was timely

filed; (4) the requesting party had a net worth of less

A prevailing party is one who demonstrates that he or she has

achieved a “material alteration of the legal relationship of the parties” and a “judicial imprimatur on the change.” Buckhannon Bd.

& Care Home, Inc. v. W. Virginia Dep't of Health & Hum. Res. ,

532 U.S. 598, 604-05 (2001).

6

41a

than $2 million when the case was filed; 7 and (5) there

are no special circumstances that would make the award

of fees unjust. See 28 U.S.C. § 2412(d)(1)(A),(2)(B).

Here, it is not disputed that Abioye is a prevailing

party, that his net worth has never exceeded 2 million

dollars, and that the fee motion was filed in a timely

manner. Respondents can avoid payment of fees only if

they can show that their pre-litigation and litigation positions were “substantially justified” or that special circumstances exist that would make a fee award unjust.

The next task for the Court, therefore, is to determine whether the position of the United States was substantially justified or that special circumstances make

an award unjust.

C. Respondents Were Not Substantially Justified In

Their Litigation Position 8

It is the government’s burden to show that its position had a reasonable basis both in law and in fact. See

Johnson v. Gonzalez, 416 F.3d 205, 210 (3d Cir. 2005

(quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988))

(defining substantially justified as “ ‘justified in sub7

The EAJA defines “party” as “an individual whose net worth

did not exceed $2,000,000 at the time the civil action was filed . . . .”

28 U.S.C. § 2412(d)(2)(B).

8

Respondents “must meet the substantially justified test twice once with regard to the underlying agency action and again with

regard to its litigation position in the proceedings arising from that

action.” Johnson v. Gonzales, 416 F.3d 205, 211 (3d Cir. 2005) (citing Kiareldeen v. Ashcroft, 273 F.3d 543, 545 (3d Cir. 2001). Because the Court finds that Respondents’ litigation position was not

“substantially justified,” the Court need not decide whether the position the government took during the underlying agency proceeding was “substantially justified.”

42a

stance or in the main’—that is, justified to a degree that

could satisfy a reasonable person”). The Court “ ‘must

not assume that the government’s position was not substantially justified simply because the government lost

on the merits.’ ” Johnson, 416 F.3d at 210 (quoting Kiareldeen, 273 F.3d at 554).

Respondents argue that if the EAJA applies, the Court

should deny Abioye’s request for attorneys’ fees and expenses because the Respondents’ litigation position was

“substantially justified.” According to Respondents,

their actions were compelled by 8 U.S.C. § 1226 and justified because Abioye was subject to mandatory detention and ineligible for release under § 1226(c). They argue that “federal litigators are obligated to defend asapplied challenges to this statute” and that their position that Abioye had not met the four-factor test articulated in German Santos was reasonable. ECF No. 27.

The Court finds neither of these arguments to have

merit. Although § 1226(c) provides for mandatory detention and the Supreme Court has determined that

“[d]etention during removal proceedings is a constitutionally permissible part of ” the removal process,”

Demore v. Kim, 538 U.S. 510, 531 (2003), the Court of

Appeals for the Third Circuit has held that prolonged

detention raises due process concerns. The Court of Appeals for the Third Circuit addressed as-applied challenges to prolonged detention under § 1226(c) in Diop v.

ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011),

and Chavez-Alvarez v. Warden York Cnty. Prison, 783

F.3d 469, 474-75 (3d Cir. 2015). In both, the appellate

court held that “where detention becomes unreasonable,

the Due Process Clause demands a hearing.” See Diop,

656 F.3d at 233; Chavez-Alvarez, 783 F.3d at 474-75.

43a

In Diop, the Court of Appeals considered whether a

petitioner was entitled to a bond hearing nearly three

years into his detention under § 1226(c). Diop, 656 F.3d

at 223-26. The appellate court held that, “[w]hen detention becomes unreasonable, the Due Process Clause demands a hearing, at which the Government bears the

burden of proving that continued detention is necessary

to fulfill the purposes of the detention statute.” Id. at

233. The Court of Appeals “noted that in rejecting a due

process challenge by a § 1226(c) detainee in Demore, the

Supreme Court emphasized that ‘mandatory detention

pursuant to § 1226(c) lasts only for a ‘very limited time’

in the vast majority of cases,’ and concluded that the result in that case ‘may well have been different’ if the petitioner’s detention had been ‘significantly longer than

the average’.” Borbot v. Warden Hudson County Correctional Facility, 906 F.3d 274, 278 (3d Cir. 2018)

(quoting Diop, 656 F.3d at 233 (quoting Demore, 538

U.S. at 529 & n.12). 9 And in Chavez-Alvarez, the Court

of Appeals held that because petitioner’s year-long detention under § 1226(c) had become unreasonable, he

was entitled to a bond hearing. Chavez-Alvarez, 783

F.3d at 478. Noting that whether detention has become

unreasonable is “highly fact-specific,” the Court of Appeals recognized that at a certain point continued detention without a bond hearing violates due process:

[D]ue process requires us to recognize that, at a certain point—which may differ case by case—the burIn Demore, the Supreme Court found that § 1226(c)’s mandatory detention provision does not, by itself, violate due process,

holding that “[d]etention during removal proceedings is a constitutionally permissible part of that process.” Demore, 538 U.S. at 531

(citations omitted). The petitioner in Demore had been in civil detention without a bond hearing for five months.

9

44a

den to an alien’s liberty outweighs a mere presumption that the alien will flee and/or is dangerous. At

this tipping point, the Government can no longer defend the detention against claims that it is arbitrary

or capricious by presuming flight and dangerousness; more is needed to justify the detention as necessary to achieve the goals of the statute. As we said

in Diop, section 1226(c) “implicitly authorizes detention for a reasonable amount of time, after which the

authorities must make an individualized inquiry into

whether detention is still necessary to fulfill the statute’s purposes of ensuring that an alien attends removal proceedings and that his release will not pose

a danger to the community.” Id. at 231. In Diop’s

case we weighed the goals of the statute against the

personal costs to his liberty resulting from his detention of roughly two years, eleven months, and concluded Diop’s detention was unconstitutional. Id.

Chavez-Alvarez, 783 F.3d at 474-75. And the appellate

court concluded that “beginning sometime after the sixmonth timeframe considered by Demore, and certainly

by the time Chavez-Alvarez had been detained for one

year, the burdens to Chavez-Alvarez's liberties outweighed any justification for using presumptions to detain him without bond to further the goals of the statute.” Id. at 478. Thus, the court determined that

Chavez-Alvarez was entitled to a bond hearing. Id.

Here, Respondents were on notice that the Court of

Appeals for the Third Circuit, prior to Abioye’s detention, had found that due process entitles § 1226(c) detainees to a bond hearing at some point, with the exact

time varying with the facts of the case. Any doubt that

the Supreme Court’s decision in Jennings v. Rodriguez,

45a

583 U.S. 281 (2018),10 abrogated Diop and Chavez-Alvarez

was removed in July 2020 when the Court of Appeals for

the Third Circuit confirmed that as-applied due-process

challenges to mandatory detention under § 1226(c) survive Jennings:

[E]ven though the [Jennings] Court foreclosed reading the statutory text [of § 1226(c)] as guaranteeing

periodic bond hearings, it reserved the aliens’ constitutional claims for remand. Jennings, 138 S. Ct. at

851. One of those claims was that due process forbids

prolonged confinement under § 1226(c) without a

bond hearing. . . . Jennings thus left our framework for assessing as-applied constitutional challenges intact. . . .

Jennings . . . did not touch the constitutional analysis that led Diop and Chavez-Alvarez to their reading. That analysis stands. We are thus bound by

Diop and Chavez-Alvarez’s decision that § 1226(c) is

unconstitutional when applied to detain an alien unreasonably long without a bond hearing. See Borbot

v. Warden Hudson Cty. Corr. Facility, 906 F.3d 274,

278 (3d Cir. 2018) (recognizing that Diop had a constitutional holding); Guerrero-Sanchez v. Warden

York Cty. Prison, 905 F.3d 208, 222 n.11 (3d Cir.

2018) (same).

The Supreme Court’s decision in Jennings abrogated Diop and

Chavez-Alvarez to the extent those decisions construed § 1226(c)

to contain an implicit “reasonable” time on the period for which detention without a bond hearing was statutorily authorized. However, Jennings did not call into question the constitutional holdings

in Diop or Chavez-Alvarez that detention under § 1226(c) may violate due process if unreasonably long.

10

46a

German Santos, 965 F.3d at 210 (citations omitted).

Diop, Chavez-Alvarez, and German Santos were all decided years before Abioye was taken into detention in

May of 2022.

Further, while the Court of Appeals for the Third

Circuit has not laid out a specific standard for district

courts to follow, multiple district courts within this Circuit which have examined the question have noted a

“growing consensus within this district and, indeed it

appears throughout the federal courts, that prolonged

detention of aliens under § 1226(c) raises serious constitutional concerns.” Alli v. Decker, 644 F. Supp. 2d 535,

539 (M.D. Pa. 2009) (citations omitted), rev’d in part, vacated in part, 650 F.3d 1007 (3d Cir. 2011). See Clarke

v. Doll, 481 F. Supp. 3d 394, 397-98 (M.D. Pa. 2020) (detained for 20 months, ordering individualized bond hearing); Sisiliano-Lopez v. Sabol, No. 1:16-CV-1793, 2017

WL 3613982 (M.D. Pa. Aug. 4, 2017), report and recommendation adopted sub nom. Sisiliano-Lopez v. Lowe,

No. 1:16-CV-1793, 2017 WL 3602037 (M.D. Pa. Aug. 22,

2017) (detained for nearly two years; ordering individualized bond hearing); Walker v. Lowe, No. 4:15-CV-0887,

2016 WL 3165645 (M.D. Pa. June 7, 2016) (detained for

approximately 3 years, ordering individualized bond

hearing).

Here, Abioye was detained for over sixteen months

without an individualized bond hearing, more than the

year-long detention in Chavez-Alvarez and the fifteenmonth detention in German Santos. See Arias v. Choate, No. 1:22-cv-02238-CNS, 2023 WL 4488890, at *7 (D.

Colo. July 12, 2023) (“Respondents knew that courts in

this District have repeatedly and unequivocally found

detention under 8 U.S.C. § 1226(c) without an individu-

47a

alized bond hearing unreasonable, and detention for approximately a year or more constitutionally unreasonable.”). Despite knowing prolonged confinement without

an individualized bond hearing raises due process concerns, when Abioye requested a bond hearing sixteen

months after initial detention, Respondents, in lieu of

taking no position or agreeing to a bond hearing, opposed his request. Where, as here, there are multiple

cases from the Court of Appeals for the Third Circuit,

which have found that prolonged detention under

§ 1226(c) without an individualized bond hearing is unreasonable, and detention for approximately a year or

more without an individualized bond hearing is constitutionally unreasonable, Respondents’ litigation position

did not have a reasonable basis in both law and fact. Given

this, the Court finds that Respondents have not shown

that their litigation position was substantially justified.

D. No Special Circumstances Exist Which Make An

Award Of Attorneys’ Fees Unjust

Respondents offer minimal briefing on the “special

circumstances” element that would otherwise make the

award of EAJA fees unjust. Basically, their position is

that “the Attorney’s General’s hands are tied when it

comes to defending the constitutionality of an Act of

Congress” and “[t]he government should not be penalized under the EAJA for simply following its obligation

to defend Acts of Congress and declining to exercise authority it does not have.” ECF No. 27 at 15, 16. In examining the record before it, the Court finds that there

is nothing to suggest special circumstances exist which

would make an award of EAJA fees unjust.

48a

For all of these reasons, the Court finds that Abioye

is eligible to recover reasonable attorneys’ fees and

other expenses under the EAJA.

E. The Fees And Expenses Sought Are Reasonable

The last task of the Court is to determine what fee

award is reasonable. Abioye has requested $18,224.58. 11

Abioye’s counsel submitted records documenting the

reasonable time spent working on the habeas petition

and the instant motion. Respondents have not challenged the time spent by, or the hourly rates of, Abioye’s

counsel. The Court, therefore, finds that Abioye is entitled to an award in the total amount of $18,224.58.

F. EAJA Award Payment

The EAJA directs the award of any attorney’s fees

directly to the prevailing party. 28 U.S.C. § 2414(d)(1)(A);

see Astrue v. Ratliff, 560 U.S. 586 (2010). In addition,

the Supreme Court of the United States has stated that

any fee award is subject to an offset to satisfy the litigant’s pre-existing debt to the government. Ratliff, 560

U.S. at 597-98. However, under Ratliff, an award is payable to the attorney where the client has no outstanding

federal debt and expressly assigned the right to receive

fees to their attorney. See Beattie v. Colvin, 240

F. Supp.3d 294, 299, n.1 (D.N.J. 2017) (citing Ratliff, 560

U.S. 586) (stating, “where, as is the case here, there is

an assignment agreement and the prevailing party owes

no debt to the government, the Supreme Court has hon-

Abioye originally sought $14,847.08 in fees, which did not include the 14 hours of work spent on the Reply. Applying the hourly

rate of $241.45, the additional fee due is $3,377.50, for a total of

$18,224.58. ECF No. 31.

11

49a

ored that agreement and awarded attorney’s fees directly to the prevailing party’s counsel.”).

Here, Abioye avers that, to the best of his knowledge,

he does not owe any debt to the United States federal

government and expressly states that he has assigned

payment of any award of fees and costs to CAIR Coalition.12 ECF No. 25-1. Accordingly, Respondents will be

directed to pay Abioye’s counsel the sum of $18,224.58

in attorneys’ fees and expenses.

IV. Conclusion

For these reasons, the Court will grant Abioye’s Motion for Award of Attorneys’ Fees Pursuant to the Equal

Access to Justice Act. Abioye is hereby awarded $18,224.58

in attorneys’ fees and expenses under the EAJA.

An appropriate Order follows.

Dated: September 26, 2024

BY THE COURT:

/s/ CHRISTOPHER B. BROWN

CHRISTOPHER B. BROWN

United States Magistrate Judge

cc: All Counsel of Record

(via ECF electronic notification)

As part of his criminal sentence, Abioye was ordered to pay

$1,335,923.77 in restitution. See public docket United States v. Abioye, Criminal Docket No. 1:20-cr-0052 (Dist. of Maryland), https://

mdd-ecf.sso.dcn/cgi-bin/DktRpt.pl?476611 (last viewed 9/26/2020).

To clarify, that amount is to be paid to the victims of his crime, not

the federal government, and therefore does not qualify as a debt to

the federal government.

12

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOHNSTOWN DIVISION

Civil Action No. 3:23-cv-0251

ADEWUMI ABIOYE, PETITIONER

v.

LEONARD ODDO, IN HIS OFFICIAL CAPACITY AS

WARDEN OF THE MOSHANNON VALLEY PROCESSING

CENTER, CAMILLA WAMSLEY, IN HER OFFICIAL

CAPACITY AS ACTING FIELD OFFICE DIRECTOR OF THE

IMMIGRATION AND CUSTOMS ENFORCEMENT,

ENFORCEMENT AND REMOVAL OPERATIONS,

PHILADELPHIA FIELD OFFICE; ALEJANDRO MAYORKAS,

IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE

DEPARTMENT OF HOMELAND SECURITY; AND

MERRICK GARLAND, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES,

RESPONDENTS

Filed: Sept. 26, 2024

ORDER

AND NOW, this 26th day of September, 2024, in accordance with the accompanying Memorandum Opinion,

it is hereby ORDERED that the Motion for Attorneys’

Fees and Expenses Under the Equal Access to Justice

Act filed by Petitioner Adewumi Abioye is GRANTED .

Respondents shall pay Abioye’s counsel the sum of

$18,224.58 in attorneys’ fees and expenses within thirty

days of the date of this Order.

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BY THE COURT:

/s/ CHRISTOPHER B. BROWN

CHRISTOPHER B. BROWN

United States Magistrate Judge

cc: All Counsel of Record

(via ECF electronic notification)

52a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Case No. 3:23-cv-22

ADOLPH MICHELIN, PETITIONER

v.

LEONARD ODDO, ET AL., RESPONDENTS

Filed: Aug. 26, 2024

MEMORANDUM AND ORDER

Before the Court is Petitioner Adolph Michelin’s Motion for Attorney’s Fees under the Equal Access to Justice Act (“EAJA”). (ECF 32.) For the reasons stated

herein, the Motion is granted in part and denied in part.

I.

Relevant Background

The Nationalities Service Center, a 501(c)(3) nonprofit, represented Michelin pro bono in this habeas

case. The Court summarized the relevant and undisputed factual background of it in its August 8, 2023 opinion granting Michelin habeas relief. (ECF 16.) As explained therein, Michelin was arrested by Immigrations

and Customs Enforcement (“ICE”) in January 2022. He

was detained at the Moshannon Valley Processing Center, which is located within the territorial boundaries of

this Court. On or around March 25, 2022, Michelin filed

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with the Board of Immigration Appeals (“BIA”) a motion to reopen his immigration case. At that same time,

he applied for an emergency stay of removal in which he

asserted his eligibility for asylum based on his fear of

persecution in Jamaica. The BIA granted Michelin a

discretionary stay of removal on March 28, 2022, but his

motion to reopen remained pending.

Almost one year later, in February 2023, Michelin

filed his petition for a writ of habeas corpus in this Court

under 28 U.S.C. § 2241. The BIA still had not decided

Michelin’s motion to reopen. 1 By that point, Michelin

had been detained at Moshannon for more than one year

without a bond hearing. In his petition, Michelin challenged the legality of his prolonged detention without a

bond hearing. As relief, Michelin sought an order from

this Court ordering his immediate release or that he receive an individualized bond hearing.

The Court ruled in Michelin’s favor on August 8,

2023, granting him habeas relief. (ECF 16, 17.) The

Court so held because Michelin established that his prolonged immigration detention without a bond hearing violated his rights under the Due Process Clause of the

Fifth Amendment. The Court further held that Michelin also established that the two custody reviews conducted by the DHS that he did have (the first in January

2022 and the second in January 2023) did not provide

him with adequate process such that no bond hearing

would be required in his case. Ultimately, the Court

As of the date of this writing the BIA still has not decided Michelin’s motion to reopen his immigration proceeding. Thus, the BIA

granted Michelin an emergency stay of removal in March 2022, but

the motion to reopen he filed at around the same time has been

pending before the BIA for more than 28 months.

1

54a

conditionally granted the writ and ordered that Respondents arrange for Michelin to have a bond hearing

before an immigration judge in a fixed amount of time

and that, if they did not, the writ would issue and Respondents would have to release Michelin to supervised

release. (ECF 25.)

Respondents filed a motion for reconsideration,

which the Court denied. (ECF 18, 24.) They then filed

an appeal to the United States Court of Appeals for the

Third Circuit. Respondents voluntarily withdrew that

appeal in February 2024.

In the meantime, in accordance with this Court’s order granting Michelin habeas relief, Michelin appeared

before an immigration judge for a bond hearing on September 5, 2023. (Pet’s Ex. A, ECF 32-1 at pp. 3-4.) The

immigration judge ordered that Michelin be released

from custody under a bond of $10,000.00. (Id.) Michelin’s family posted his bond. According to his counsel,

since then Michelin has been living in Philadelphia with

his family and complying with all conditions of his release. (ECF 32 at p. 2.)

Now before the Court is Michelin’s Motion (ECF 32)

requesting an award of attorneys’ fees and other expenses under the EAJA. In support, Michelin has submitted, among other things, the declaration of one of his

attorneys, Margaret Kopel (Pet’s Ex. C, ECF 32-1 at pp.

7-9), as well as the time entries of Attorney Kopel and

her colleagues with the Nationalities Service Center

who also worked on this case (Attorneys Jonah Eaton,

Whitney Viets and Lilah Thompson). (Pet’s Ex. D, ECF

32-1 at pp. 10-17; ECF 39-1 at pp. 1-8.) Michelin’s Motion is fully briefed. (ECF 34, 39.)

55a

II. Discussion

“Congress passed the EAJA in response to its concern that persons may be deterred from seeking review

of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights.” Sullivan v. Hudson, 490 U.S.

877, 883 (1989) (internal quotation and citation omitted).

The EAJA, which amended 28 U.S.C. § 2412 and 5

U.S.C. § 504, was designed to rectify this situation by

providing for a mandatory award of reasonable attorneys’ fees in some cases. Comm’r, I.N.S. v. Jean, 496

U.S. 154, 163 (1990) (“the specific purpose of the EAJA

is to eliminate for the average person the financial disincentive to challenge unreasonable governmental actions.”) It “renders the United States liable for attorney’s fees for which it would not otherwise be liable, and

thus amounts to a partial waiver of sovereign immunity.

Any such waiver must be strictly construed in favor of

the United States.” Ardestani v. I.N.S., 502 U.S. 129,

137 (1991).

The EAJA provides, in relevant part, that:

[e]xcept as otherwise specifically provided by statute, 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), including proceedings for

judicial review of agency action, brought by or against

the United States in any court having jurisdiction of

that action, unless the court finds that the position of

the United States was substantially justified or that

special circumstances make an award unjust.

56a

28 U.S.C. § 2412(d)(1)(A) (emphasis added). 2 The EAJA

further provides that the “position of the United States”

“means, in addition to the position taken by the United

States in the civil action, the action or failure to act by

the agency upon which the civil action is based[.] Id.,

§ 2412(d)(2)(D).

A. The EAJA Applies Here

Respondents contend that a habeas action does not

fall with the phrase “any civil action” under the EAJA

and therefore Michelin cannot recover attorneys’ fees

under it. The EAJA does not define the phrase “any

civil action,” and neither the Supreme Court nor the

Third Circuit has addressed whether a habeas action

qualifies as one. 3 Notably, however, the Third Circuit

2

To be eligible for fees under the EAJA, an applicant also must:

(1) be a prevailing party; (2) have submitted the motion for fees

within thirty days of final judgment; and (3) have a net worth that

is less than two million dollars at the time the civil action was filed.

28 U.S.C. § 2412(d)(1)(B), (d)(2)(B)(i). Respondents do not dispute

that Michelin satisfied these three conditions.

3

In support of its position that the EAJA does not apply to Michelin’s case, Respondents quote Daley v. Fed. Bureau of Prisons,

199 F. App’x 119 (3d Cir. 2006), in which the Third Circuit observed

that “the weight of authority indicates . . . that filing a § 2241 petition is not a ‘civil action’ for purposes of the EAJA.” 199

F. App’x at 121. Because Daley is an unpublished decision, it lacks

precedential value. Additionally, Daley’s statement does not have

persuasive value here because Daley concerned a former federal

prisoner who had challenged in a habeas proceeding the date the

Federal Bureau of Prisons transferred him to a community confinement center. It did not involve the civil detention of an immigration detainee. Additionally, none of the cases cited in Daley

were habeas cases filed by an immigration detainee. Thus, neither

Daley nor the cases cited by it are instructive on the issues presented by Michelin’s Motion.

57a

has adjudicated motions for attorneys’ fees in immigration habeas cases without questioning whether such

cases fall outside the ambit of the EAJA. Kiareldeen v.

Ashcrof t, 273 F.3d 542 (3d Cir. 2001) (considering the

merits of a motion for attorney’s fees under the EAJA

in a habeas case filed by a noncitizen challenging the

constitutionality of his immigration detention). 4 So too

have district courts within the Third Circuit, which have

in recent years granted EAJA fees to successful petitioners in habeas immigration proceedings. See, e.g.,

Sisiliano-Lopez v. Lowe, 448 F. Supp. 3d 419, 422 (M.D.

Pa. 2020); Ildefonso-Candelario v. Lowe, 2017 WL

4310078, at *1 (M.D. Pa. Sept. 28, 2017); Soriano v.

Sabol, 2017 WL 3268400, at *1 (M.D. Pa. Aug. 1, 2017).

The courts of appeals that have addressed whether

immigration habeas cases are “civil actions” under the

EAJA are divided. The Second and Ninth Circuits have

recognized the distinction between different types of habeas cases and have held that an immigration habeas

proceeding is a “civil action” that allows for attorneys’

fees under the EAJA. Vaccio v. Ashcroft, 404 F.3d 663,

670-72 (2d Cir. 2005) (a habeas proceeding challenging

immigration detention constitutes a “civil action” under

In this case, Michelin prevailed on his claim that, after weighing

the factors set forth in German Santos v. Warden Pike County

Corr. Facility, 965 F.3d 203 (3d Cir. 2020), the Court would conclude that his continued detention without a bond hearing violated

his rights under the Due Process Clause. German Santos was an

immigration habeas case that, like Michelin’s, was brought under

28 U.S.C. § 2241. In 2021, the Third Circuit panel that decided

German Santos entered an order in that case approving of the petitioner and government’s stipulation to pay the petitioner’s attorneys’ fees under the EAJA. See Order in German Santos v. Warden Pike County Corr. Facility, No. 19-2663 (3d Cir. Feb. 9, 2021).

4

58a

the EAJA; such actions meaningfully differ from the

criminal habeas petitions that courts have held cannot

recover fees under the EAJA because they are “hybrid”

criminal/civil actions); In re Hill, 775 F.2d 1037, 1040-41

(9th Cir. 1985) (the EAJA applied to a habeas action by

noncitizens who sought admission to the United States).

In contrast, the Fourth and Fifth Circuits have held that

all habeas petitions are “hybrid” in nature and thus are

not “civil actions” under the EAJA regardless of whether the detention being challenged is civil immigration

detention or criminal detention. Obando-Segura v. Garland, 999 F.3d 190, 192 (4th Cir. 2021) (habeas corpus

proceedings are unique, hybrid proceedings, therefore

making it ambiguous as to whether they fall under “any

civil action” within the EAJA); Barco v. Witte, 65 F.4th

782, 785 (5th Cir. 2023) (adopting the Obando-Segura

majority’s reasoning and also citing to cases about habeas petitions arising out of criminal cases to recognize

the hybrid nature of habeas proceedings), cert. denied

sub nom. Gomez Barco v. Witte, 144 S. Ct. 553 (2024).

The Court respectfully finds the reasoning of the Second and Ninth Circuits, as well as recent district court

cases that have held that immigration habeas cases are

“civil actions” covered by the EAJA, to be more persuasive. See, e.g., Arias v. Choate, 2023 WL 4488890, at *2

(D. Colo. July 12, 2023) (“immigration habeas petitions

are included in the term ‘any civil action’ as used in the

EAJA and the waiver of sovereign immunity applies.”);

Daley v. Choate, 2024 WL 989397, at *2 (D. Colo. Mar.

7, 2024) (same), appeal pending No. 24-1191 (10th Cir.);

see also Kholyavskiy v. Schlecht, 479 F. Supp. 2d 897,

901 (E.D. Wis. 2007) (“[E]ven if the EAJA could be reasonably read as excluding habeas actions challenging

criminal convictions, the same is not true of habeas ac-

59a

tions challenging administrative detention.”). This conclusion is consistent with the recognition that immigration proceedings themselves are civil in nature. See, e.g.,

Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (noting, in

an immigration detention habeas case, that “[t]he proceedings at issue here are civil, not criminal”); Padilla

v. Kentucky, 559 U.S. 356, 365 (2010) (“[R]emoval proceedings are civil in nature”); German Santos, 965 F.3d

at 211 (instructing district courts to examine conditions

of confinement in immigration habeas petitions because

“[r]emoval proceedings are civil, not criminal.”); Xu

Long Yu v. Ashcrof t, 259 F.3d 127, 131 (3d Cir. 2001)

(“Immigration proceedings, however, are civil, rather

than criminal, in nature; therefore the Sixth Amendment

guarantee of effective counsel does not attach.”); see

also Arias, 2023 WL 4488890, at *3 (the petitioner’s immigration habeas case “bears no hallmark of a criminal

proceeding that would render it a ‘hybrid’ or criminal

action outside the ambit of the EAJA.”).

Moreover, the only type of “civil actions” that the

EAJA excludes from its reach are those “sounding in

tort[.]” 28 U.S.C. § 2412(d)(1)(A). “If Congress had intended to exclude habeas actions from the EAJA, it

would have done so as it excluded tort actions.” Kholyavskiy, 479 F. Supp. 2d at 901.

Thus, the Court agrees with Michelin that this habeas case, which challenged the legality of his civil immigration detention without a bond hearing, qualifies as

a “civil action” under the EAJA.

B. The Government’s Position Was Not Substantially

Justified

Respondents contend that if the EAJA applies, the

Court should nevertheless deny Michelin’s request for

60a

attorneys’ fees because the position the government

took with respect to him was “substantially justified.” 5

28 U.S.C. § 2412(d)(1)(A) (the court shall award a prevailing party attorneys’ fees “unless the court finds that

the position of the United States was substantially justified[.]”) It is Respondents’ burden to establish that the

government’s position was substantially justified.6 Pierce

v. Underwood, 487 U.S. 552, 565 (1988).

To meet this burden, Respondents must show that

the government’s position was “justified to a degree that

could satisfy a reasonable person. Put another way, substantially justified means having a ‘reasonable basis in

both law and fact.’ ” Johnson v. Gonzales, 416 F.3d 205,

210 (3d Cir. 2005) (quoting Pierce, 487 U.S. at 565). Respondents “must show: (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.” Morgan v. Perry, 142 F.3d 670, 684 (3d Cir.

1998). The court “ ‘must not assume that the government’s position was not substantially justified simply

because the government lost on the merits.’ ” Johnson,

5

The government can avoid having to pay attorneys’ fees under

the EAJA if it shows that “that special circumstances make an award

unjust.” 28 U.S.C. § 2412(d)(1)(A). Respondents bear the burden

of proving that special circumstances exist. Brinker v. Guiffrida,

798 F.2d 661, 668 (3d Cir. 1986). They do not argue that “special

circumstances” exist here that would “make an award unjust.”

6

The Supreme Court has recognized that although “[a]ny given

civil action can have numerous phases,” in judging the justification

of a position, a court must treat the “case as an inclusive whole, rather

than as atomized line-items.” Comm’r, I.N.S. v. Jean, 496 U.S. 154,

161-62 (1990).

61a

416 F.3d at 210 (quoting Kiareldeen v. Ashcroft, 273

F.3d 542, 554 (3d Cir. 2001)).

Importantly, Respondents “must meet the substantially justified test twice—once with regard to the underlying agency action and then again with regard to

[the government’s] litigation position in the proceedings

arising from that action.” Johnson, 416 F.3d at 211.

Thus, Respondents must show that the government’s

pre-litigation position regarding Michelin was substantially justified, and if they do not satisfy that burden

then he is entitled to an award of attorneys’ fees. Id.;

Morgan, 142 F.3d at 684.

Respondents assert that the DHS’s pre-litigation position was substantially justified because a final order of

removal had been issued in Michelin’s case and therefore, he was subject to mandatory detention under

8 U.S.C. § 1231(a), which contains no explicit bond hearing requirement. This argument is not persuasive because

Michelin established as fact during the litigation of his

habeas petition that up to his January 17, 2023 bond

hearing it was the position of the DHS that he was being

detained under 8 U.S.C. § 1226, not 8 U.S.C. § 1231(a).7

As the Court recounted in its opinion granting Michelin habeas

relief (ECF 16), Michelin proved that on January 27, 2022, which

was soon after his arrest, the DHS issued in his case a Notice of

Custody Determination. This Notice stated that Michelin was being detained pursuant to 8 U.S.C. § 1226 (§ 236 of the Immigration

and Nationality Act (“INA”)). (Pet’s Ex. E, ECF 4-1 at pp. 83-85.)

Later, in an October 2022 email from Michelin’s attorney to his

DHS deportation officer, Michelin’s attorney asked: “To clarify, is

it ICE’s position that Mr. Michelin is detained pursuant to Section

236 of the INA [8 U.S.C. § 1226] and 8 C.F.R. 241.4(b)(1) since he

has a pending motion to reopen?” (Pet’s Ex. F, ECF 4-1 at p. 87.)

Michelin’s DHS deportation officer replied: “Yes.” (Id.)

7

62a

(Pet’s Ex. E, ECF 4-1 at p. 83; Pet’s Ex. G, Veits’ Decl.,

ECF 4-1 at p. 90, ¶¶ 4-6; Pet’s Ex. F, ECF 4-1 at pp. 8788.) Since Michelin had no qualifying criminal convictions that would render him detained under § 1226(c),

his counsel reasonably determined that he was being detained under § 1226(a) and was thus eligible for a bond

hearing. That is why Michelin’s counsel filed a motion

for such a hearing, which the DHS did not initially oppose. (Pet’s Ex. G, Veits’ Decl., ECF 4-1 at p. 90, ¶¶ 6-7.)

Michelin’s bond hearing was scheduled for January

17, 2023. At the hearing, the DHS contended for the first

time that Michelin was being detained under § 1231(a).

(Id., ¶ 8.) Based on DHS counsel’s explanation that

Michelin was being detained under § 1231(a)(6), the immigration court did not conduct a merits-based discretionary hearing on bond. Instead, it held that it lacked

jurisdiction to consider Michelin’s bond motion. (Id.)

During this same hearing, DHS counsel advised

Michelin’s attorney that the DHS had “just completed a

custody evaluation” of him under the applicable regulations.8 (Id., ¶ 9.) Michelin established that this was the

first time his attorney was notified “of this custody eval8

As the Court previously explained, “the Third Circuit in

[Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208,

227 (3d Cir. 2018)] observed that the regulations that implement

the government’s detention authority under § 1231(a)(6) themselves raise serious constitutional concerns. Although [Johnson v.

Arteaga-Martinez, 142 S. Ct. 1827 (2022)] abrogated the Third Circuit’s statutory analysis of § 1231(a)(6) and its application of the

canon of constitutional avoidance, the Third Circuit’s discussion on

why it was necessary to invoke that canon, including its concerns

about the insufficient process afforded to noncitizens in the regulations, remains persuasive.” (ECF 16 at p. 16) (internal quotations

and citations omitted).

63a

uation, despite having been [his] counsel of record for

nearly a year, having corresponded with [his deportation officer] about the custody evaluation just three

months’ prior, and having communicated on a near-constant basis with ICE officials at Moshannon Valley to

coordinate calls with [Michelin] throughout 2022.” (Id.,

¶¶ 9-11.) Michelin’s attorney requested that DHS counsel notify ICE of her intention to submit documentation

to ICE to support Michelin’s release. DHS counsel agreed

to contact ICE as soon as possible. (Id., ¶ 9.)

The next day, on January 18, 2023, a DHS officer

called Michelin’s attorney and informed her that his custody evaluation had “already been completed” and “sent

up the chain of command” at DHS. As a result, the officer stated, Michelin’s attorney would be unable to submit documentation in support of his release from detention. (Id., ¶ 10.) One day later, on January 19, 2023, ICE

issued a Decision to Continue in which it informed Michelin that it would not release him from custody because

it expected to carry out his “removal in the reasonably

foreseeable future should your Motion to Reopen and Stay

of Removal be denied.” (Resp’s Ex. 4, ECF 8-4 at p. 2.)

By this time, Michelin had been detained more than

one year without a bond hearing. The BIA had granted

the emergency motion to stay his removal nine months

earlier in March 2022, but it had not decided the motion

to reopen that he had filed around the same time. Of

course, the DHS had no control over when the BIA decided Michelin’s motion to reopen. But the DHS’s position that, although the BIA had granted Michelin an

emergency stay of removal in March 2022, it could nevertheless detain him under § 1231(a)(6) indefinitely and

without a bond hearing and also without providing him

64a

with sufficient notice of or input in his January 2023 custody review was not “justified to a degree that could satisfy a reasonable person.” Pierce, 487 U.S. at 565.

For all of these reasons, the Court finds that Respondents have not satisfied their burden of establishing that the DHS’s pre-litigation position with respect

to Michelin’s custody was “substantially justified.” 9

Because the Court finds that the government’s pre-litigation

position regarding Michelin was not “substantially justified,” the

Court need not decide whether the position it took during the litigation of this case was “substantially justified.” See, e.g., Morgan,

142 F.3d at 684; Johnson, 416 F.3d at 210. The Court notes, however, that in their answer to Michelin’s petition (ECF 8), Respondents did not contest the evidence that Michelin presented in support of his as-applied due process claim, counter most of arguments

made in support of it, or request an evidentiary hearing on any issue. Rather, Respondents maintained that the government could

subject Michelin to open-ended detention without that detention

ever being subject to review by an independent adjudicator. The

government could do so, Respondents asserted, because the government would have deported Michelin in March 2022 if he had not

moved to reopen his immigration case and obtained an emergency

stay of removal. In support of this position, Respondents cited unpublished decisions in which a court denied an immigration detainee’s requests for habeas relief when the delay of removal was

caused by legal proceedings initiated by the detainee and not, as

with each detainee in Zadvydas v. Davis, 533 U.S. 678, 687-88

(2001), the government’s inability to find a country to accept the

detainee. (ECF 8 at pp. 8-9.) Although Michelin’s as-applied due

process claim presented novel and complex issues, Respondents

should have addressed Michelin’s argument that, given the Supreme Court’s recent decision in Johnson v. Arteaga-Martinez,

142 S. Ct. 1827 (2022), there was ambiguity as to the proper framework to analyze his as-applied due process challenge and that the

proper framework the Court should apply was that which is set

forth in German Santos v. Warden Pike County Corr. Facility, 965

F.3d 203 (3d Cir. 2020). The first time Respondents addressed that

9

65a

Michelin is thus eligible to recover reasonable attorneys’

fees and other expenses under the EAJA.

C. The Amount of the Fee Awarded

The Court’s next task is to determine what fee award

is reasonable. The EAJA authorizes fees not to exceed

$125 per hour, adjusted for inflation.

28 U.S.C.

§ 2412(d)(2)(A)(ii).

1. The adjusted hourly rate

The parties agree that in calculating the adjusted

hourly rate the Court should refer to the following rate

schedule proposed by Respondents. 10 This schedule adjusts the hourly rate calculation for each of the months

when Michelin attorneys state that fees were earned, using the consumer price index for consumers for that

month as follows:11

January 2023

February 2023

March 2023

April 2023

August 2023

September 2023

$240.18

$241.52

$242.32

$243.55

$246.49

$247.10

argument was in the motion for reconsideration they filed after the

Court granted Michelin habeas relief and closed this case.

10

The inflation data is now available for the months of February

and March 2024 and therefore the Court has updated the proposed

table submitted by Respondents to reflect the inflation-adjusted

hourly rate for those months. See https://www.bls.gov/data/inflation_

calculator.htm.

11

Respondents have established that Michelin calculated the adjusted hourly rate incorrectly in his Motion. (ECF 34 at pp. 11-13.)

Michelin has acknowledged this and has conceded to the proposed

rate schedule provided by Respondents. (ECF 39 at p. 6.)

66a

October 2023

February 2024

March 2024

$247.01

$249.14

$250.75

2. Exclusion of certain fees

The total award that Michelin seeks under the EAJA

is $21,392.51.12 Courts may award only “reasonable” attorney’s fees and expenses under the statute. 28 U.S.C.

§ 2412(d)(2)(A). Michelin, as the fee applicant, “bears

the burden of establishing entitlement to a reasonable

award and documenting the appropriate hours expended

and hourly rates.” Beattie v. Colvin, 240 F. Supp. 3d 294,

296 (D.N.J. 2017) (citations omitted). “The Supreme

Court has cautioned that ‘[c]ounsel for the prevailing

party should make a good faith effort to exclude from a

fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice

ethically is obligated to exclude such hours from his fee

submission.’ ” Id. at 296 (quoting Hensley v. Eckerhart,

461 U.S. 424, 434 (1983)). “A district court has broad

discretion in determining the appropriate amount of a

fee award.” Id. (citing Hensley, 461 U.S. at 437); 28

U.S.C. § 2412(d)(1)(C) (“The court, in its discretion, may

reduce the amount to be awarded pursuant to this subsection, or deny an award, to the extent that the prevailing party during the course of the proceedings engaged

in conduct which unduly and unreasonably protracted

the final resolution of the matter in controversy.”)

Respondents assert that the Court should reduce the

amount of the award requested by Michelin because

This amount was calculated under the table contained herein

and also accounts for the additional 15.3 hours of work Michelin’s

counsel spend on the reply (ECF 39).

12

67a

they claim that: (a) many of his counsels’ time entries

are overly vague; (b) his counsel attempts to recover for

clerical tasks that are not compensable under the EAJA;

and (c) he cannot recover for fees incurred in connection

with the September 5, 2023 bond hearing before the immigration judge.

(a) Alleged vague time entries

Respondents contend that the Court should reduce

any fee award by almost $5,000 for time entries that allegedly lack sufficient detail to determine whether the

work is compensable. In evaluating this contention, the

Court notes that Michelin’s counsel are “not required to

record in great detail how each minute of [their] time

was expended.” Hensley, 461 U.S. at 437 n.12. Counsel

should, however, “at least . . . identify the general subject matter of [their] time expenditures.” Id.

Respondents contend that many of counsel’s time entries fail to meet that burden. They note that counsel’s

entries include time entries for “response to motion to

reconsider,” “research,” “declaration,” “fees motion,” and

“amended petition.” They argue that these entries are

vague and makes it impossible to determine if the time

is compensable. Michelin disagrees, asserting that his

counsel have adequately identified the general subject

matter of the time entry.

Having reviewed these entries in the context of the

legal work that was involved in this matter, the Court

finds that these entries are sufficient. Accordingly, Respondents’ request for a fee reduction for these entries

will be denied.

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(b) Alleged clerical tasks

Respondents object to Michelin’s attempt to recover

over $600.00 in fees for work performed by Attorney Kopel for what they describe as “clerical tasks.” See, e.g.,

Torres v. Saul, 2020 WL 4581825, at *7 (D.N.J. Aug. 10,

2020) (“clerical work that can be performed by non-attorneys is not compensable as attorney’s fees under the

EAJA.”) Specifically, they assert that Michelin cannot

recover fees to cover time that Attorney Kopel devoted

to service of process (2.3 hours) and also for the time it

took her to file the form indicating that Michelin consented to a Magistrate Judge presiding over the case (12

minutes).

Michelin counters that the Nationalities Service Center does not employ paralegals who assist attorneys with

clerical tasks such as service of process. He also points

out that Respondents’ counsel declined Michelin’s request to waive service. According to Michelin, “[t]his

was a waste of time, but one that sits squarely on Respondents.” (ECF 39 at p. 7.)

Given the fact that counsel for Michelin does not employ paralegals who could assist with tasks such as service, the Court concludes that recovery of these fees will

be permitted.

(c) Time spent on the bond hearing

Michelin seeks fees for 22.5 hours of work (for a total

of $5,550.91) performed by Attorneys Viets and Thompson related to the September 5, 2023 bond hearing. 13

Counsel worked 14.5 hours in August 2023 ($3574.11) preparing

for the bond hearing and worked 8 hours in September 2023

($1,976.80) preparing for that hearing.

13

69a

Since the fees for that work was not “incurred” in this

“civil action[,]” the EAJA’s provision at § 2412(d)(1)(A)

does not apply. Thus, as Respondents point out and

Michelin does not contest, he must be seeking an award

of fees for that work under that part of the EAJA that

is codified in the Administrative Procedure Act (“APA”)

at 5 U.S.C. § 504(a)(1). Kabura, 2020 WL 4747788, *5

(“the recovery of fees for agency adjudications like

those conducted in Immigration Court are governed by

5 U.S.C. § 504.”)

Section 504(a)(1) provides, in relevant part, that “an

agency that conducts an adversary adjudication shall

award, to a prevailing party other than the United States,

fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency

was substantially justified or that special circumstances

make an award unjust.” An “adversary adjudication” is

“an adjudication under section 554 of this title in which

the position of the United States is represented by counsel or otherwise.” 5 U.S.C. § 504(b)(1)(C)(i).

In Ardestani v. I.N.S., 502 U.S. 129, 137 (1991) the

Supreme Court “conclude[d] that administrative immigration proceedings do not fall ‘under section 554’ and

therefore are wholly outside the scope of the EAJA.”

Thus, the EAJA does not act as a waiver of sovereign

immunity as to the September 5, 2023 bond hearing before the immigration judge, and Michelin cannot recover

fees for work performed by his attorneys associated

with it.14 Kabura, 2020 WL 4747788, *5 (concluding that

As Respondents point out, before the Supreme Court decided

Ardestani, some courts had held “that EAJA fees may be awarded

for administrative proceedings intimately tied to the resolution of

14

70a

the government correctly objected to the petitioner’s request for fees for representation before the immigration

judge).

Accordingly, Michelin is not entitled to an award of

fees for the 22.5 hours of work performed by Attorneys

Viets and Thompson related to the bond hearing. The

Court therefore will reduce Michelin’s requested award

by $5,550.91, which accounts for the reduction of 22.5

hours of non-compensable time associated with the bond

hearing. (See ECF 34 at pp. 17-18.)

the judicial action and necessary to the attainment of the results

Congress sought to promote by providing for fees.” Nadarajah v.

Holder, 569 F.3d 906, 920 (9th Cir. 2009) (internal quotation and

citation omitted). This principle arose from the Supreme Court’s

decision in Sullivan v. Hudson, 490 U.S. 877, 888 (1989)). As the

Ninth Circuit has recognized, however, “[s]ince Ardestani, Hudson’s holding has been narrowly applied and limited to post-litigation

situations . . . where there was a court-ordered remand for further

administrative proceedings and the agency representation was

necessary to carrying out the court’s order.” Nadarajah, 569 F.3d

at 920.

As the Eight Circuit has explained, “Hudson sets out specific

and well-defined prerequisites” before it applies: “there must be a

remand by the reviewing court and ‘detailed provisions for the

transfer of proceedings from the courts to the [agency],’ which

would implicate ‘a degree of direct interaction between a federal

court and an administrative agency alien to traditional review of

agency action under the [APA],’ [Hudson, 490 U.S. at 885], before

the award of fees can be even considered.” Full Gospel Portland

Church v. Thornburgh, 927 F.2d 628, 632 (1991). None of those

circumstances are present here. This Court did not remand this

case to the immigration judge, nor did it retain jurisdiction over

the matter. And Michelin would have been considered the prevailing party regardless of the outcome of the bond hearing before the

immigration judge.

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III. Conclusion

Based on the above, the Court concludes that Michelin is entitled to an award of $15,841.60 in attorneys’

fees and other expenses under the EAJA. This award

was calculated as follows:

January 2023

February 2023

March 2023

April 2023

August 2023

October 2023

February 2024

March 2024

9.5 hours x 240.18 = $2,281.71

12.8 hours x $241.52 = $3,091.46

13 hours x $242.32 = $3,150.16

.2 hours x $243.55 = $48.71

9.7 hours x $246.49 = $2,390.95

2 hours x $247.01 = $494.02

2.2 hours x $249.14 = $548.11

15.3 hours x $250.75 = $3,836.48

The Supreme Court has held that “a § 2412(d) fees

award is payable to the litigant and is therefore subject

to a Government offset to satisfy a pre-existing debt that

the litigant owes to the United States.” Astrue v. Ratliff, 560 U.S. 586, 589 (2010). An award is payable to the

attorney where the client has no outstanding federal

debt and expressly assigned the right to receive fees to

his or her attorney. See, e.g., Mathews-Sheets v. Astrue,

653 F.3d 560, 565-66 (7th Cir. 2011) (interpreting Ratliff

to suggest “that if there is an assignment, the only ground

for insisting on making the award to the plaintiff is that

the plaintiff has debts that may be prior to what she owes

her lawyer. There is no indication of that in this case, so

to ignore the assignment and order the fee paid to her

would just create a potential collection problem for the

lawyer”), overruled on other grounds by Sprinkle v. Colvin, 777 F.3d 421 (7th Cir. 2015); Beattie v. Colvin, 240

F. Supp. 3d 294, 299 n.1 (D.N.J. 2017) (“[I]n this case

[which is governed by the EAJA], the legal work was

performed pro bono, so there is no question of whether

72a

fees should be directed to the client to reimburse him

for any sums already paid to counsel. To the contrary,

where, as is the case here, there is an assignment agreement and the prevailing party owes no debt to the government, the Supreme Court has honored that agreement and awarded attorney’s fees directly to the prevailing party’s counsel.”)

Here, Michelin avers that, to the best of his knowledge, he does not “owe any debt to the United States

federal government.” (Pet’s Ex. B, Michelin Decl., ECF

32-1 at p. 6, ¶ 7.) He also states that he has elected that

any fees and costs that are awarded by the Court be issued directly to his counsel. (Id., ¶ 5.) Therefore, the

Court will do so.

ORDER

And now, this 26th day of August, 2024, it is hereby

ORDERED that the Court grants in part and denies in

part Michelin’s Motion for Attorney’s Fees (ECF 32).

Respondents shall pay Michelin’s counsel the sum of

$15,841.60 in attorneys’ fees and expenses within thirty

days of the date of this order.

BY THE COURT:

/s/ PATRICIA L. DODGE

PATRICIA L. DODGE

United States Magistrate Judge

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APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 24-2990 and 24-3198

District Court nos. 2:23-cv-00022 and 3:23-cv-00251

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

Filed: Mar. 2, 2026

SUR PETITION FOR REHEARING

74a

Before:

CHAGARES , Chief Judge, HARDIMAN,

SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY,

PHIPPS, FREEMAN, MONTGOMERY-REEVES, CHUNG,

BOVE, MASCOTT, Circuit Judges and MCKEE* 1 and

AMBRO,* Senior Circuit Judges

The petitions for rehearing filed by the Appellants,

Warden Moshannon Valley Correctional Center, et al.,

in the above-entitled cases having been submitted to the

judges who participated in the decision of this Court and

to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in

the decision having asked for rehearing, and a majority

of the judges of the circuit in regular service not having

voted for rehearing, the petitions for rehearing by panel

and the Court en banc, are denied. 1

BY THE COURT,

/s/

THOMAS L. AMBRO

Circuit Judge

Dated: March 2, 2026

Amr/Cc: All counsel of record

* The votes of the Honorable Thomas L. Ambro and Theodore A.

McKee, Senior Judges of the United States Court of Appeals for

the Third Circuit, are limited to panel rehearing.

1

Judges Matey, Porter, Phipps, Bove, and Mascott would grant

the petitions for rehearing by the en banc court. Judge Bove, joined

by Judges Matey, Porter, and Phipps, files the attached dissent sur

denial of rehearing. Judge Mascott files the attached separate dissent sur denied rehearing.

75a

Michelin v. Warden Moshannon Valley Correctional

Center, Nos. 24-2990, 24-3198

BOVE, Circuit Judge, joined by PORTER, MATEY, and

PHIPPS, Circuit Judges, dissenting sur denial of rehearing en banc.

The panel’s decision in these cases requires taxpayers to help fund aliens’ efforts to prolong their stay in

this Country despite orders of removal. The panel held

that the sovereign-immunity waiver in the Equal Access

to Justice Act (EAJA) permitted attorney-fee awards to

Petitioners because the term “any civil action,” 28

U.S.C. § 2412(d)(1)(A), unambiguously included their

habeas petitions. See Michelin v. Warden Moshannon

Valley Corr. Ctr., --- F.4th ----, 2026 WL 263483, at *3

(3d Cir. 2026).1 Although the differing interpretations

of the EAJA that have surfaced around the Country may

ultimately require a nationwide solution, we should have

reheard these cases en banc because the question is one

of exceptional importance and required our Court to

choose sides in a deep Circuit split.

Congress must use clear and unambiguous language

to waive the government’s sovereign immunity. My disagreement with the outcome in these cases has roots in

a simple question from the panel’s thorough and thoughtful opinion: “In isolation, almost anything can be ambigUnless otherwise indicated, case quotations omit all internal citations, quotation marks, footnotes, alterations, and subsequent history. Citations to a “Rule” or “Civil Rule” are to the Federal Rules

of Civil Procedure. Citations to “Habeas Rules” are to the Rules

Governing Section 2254 Cases in the United States District Courts

and Rules Governing Section 2255 Cases in the United States District Courts, which are substantially similar with respect to the

propositions for which they are both cited in this opinion.

1

76a

uous. ‘Mary had a little lamb’ seems clear. But did Mary

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

Michelin, 2026 WL 263483, at *7 n.7. The question had

not previously crossed my mind, but I knew the answer

immediately. Context from the rest of the poem makes

the answer clear. See Sarah Josepha Hale, Poems For

Our Children 6-7 (Marsh, Capen & Lyon ed. 1830). I do

not know if Mary was a vegetarian, but I know she had

at least one pet. In my mind, there is no ambiguity

worth mentioning there. The government’s interpretation of the EAJA in these cases does not rest on anything that even approaches the type of manufactured

hyper-textualist ambiguity suggested by the panel’s

question. Instead, there is a real question, based on

text, context, case law, and history, regarding whether

the statutory language covers these habeas petitions.

In fact, there is significant tension between the

panel’s holding that “any civil action” unambiguously includes habeas and our en banc decision in United States

v. Bendolph, which flatly rejected the “premise that habeas cases and ordinary civil cases are indistinguishable.” 409 F.3d 155, 166 (3d Cir. 2005). There are several

cases from the Supreme Court and our Court with similar reasoning. There are also cases, cited by the panel,

that characterize habeas as civil. The juxtaposition of

these authorities demonstrates that § 2412(d)(1)(A) does

not meet the “demanding” standard for a waiver because “there is a plausible interpretation of the statute

that preserves sovereign immunity.” Lac du Flambeau

Band of Lake Superior Chippewa Indians v. Coughlin,

599 U.S. 382, 388 (2023). One alternative interpretation,

which I favor, is that “civil action” in the EAJA means

the same thing as “civil action” in the Federal Rules of

Civil Procedure. The phrase is a term of art assigned a

77a

fixed meaning by Congress in the Rules Enabling Act,

and then defined in the Civil Rules. Congress transplanted the phrase into Title 28 in connection with the

positive-law codification process—more than 30 times—

accompanied by Reviser’s Notes citing the definition in

the Civil Rules. Habeas proceedings are civil in nature,

but they are not “civil actions” under the Civil Rules or

the EAJA. Therefore, as discussed in Part I, the government did not waive sovereign immunity in connection

with Petitioners’ applications for attorneys’ fees.

The fee awards in these cases were inappropriate for

an additional reason. The government’s positions regarding Petitioners’ detention were “substantially justified” and “special circumstances” made the fee awards

“unjust.” 28 U.S.C. § 2412(d)(1)(A). The habeas petitions at issue relied on case law establishing a due process balancing test based on a non-exhaustive list of factors. The main cases creating that test involved lawful

permanent residents who had developed connections to

this Country—and, perhaps, corresponding due process

protections—that Petitioners lack. When we create this

kind of amorphous standard, it is to be expected that

there will be times when a judge sees that balancing differently than the government. Then, the government

loses. What is atypical, and what I do not think the record supported here, is for a court to find that the government’s balancing is so lacking in justification that a

fee award is warranted.

Take, for example, the case of Petitioner Adolph

Michelin. Michelin overstayed a tourist visa issued to

him in 2010, and he was later convicted of a marijuana

offense as well as resisting an officer in a separate incident. While remaining in the United States without au-

78a

thorization, he was arrested several other times for offenses relating to narcotics, aggravated assault with a

firearm, and aggravated battery on a pregnant woman.

After DHS entered a final order of removal in 2018, but

bailed Michelin while he challenged the order, he absconded. Following another narcotics arrest in 2021,

and facing removal on March 31, 2022, the BIA granted

Michelin’s March 25, 2022 motion to reopen but decided

to keep him detained during that process. A magistrate

judge granted habeas relief, holding that this detention

violated Michelin’s due process rights because it was unreasonable for DHS to presume that he presented a

flight risk and danger to the community. I do not see it

that way for an alien with Michelin’s history, lack of ties

to the United States, rap sheet, and a documented instance of flight, but that was not my call to make. The

magistrate judge later directed the government to pay

Michelin’s attorneys’ fees relating to that litigation. I

believe that was an abuse of discretion that led to an outcome Congress could not have intended.

The government pressed this issue on appeal with respect to the second Petitioner, Adewumi Abioye. Abioye

also overstayed his visa, appears to have attempted to

obtain citizenship through marriage fraud, and perpetrated a massive financial fraud in this Country that

caused $4.6 million in losses to more than 10 victims. He

admitted that $1.5 million of the fraud proceeds went to

accounts he controlled. Abioye had not completed the

supervised-release component of his sentence at the

time he argued in habeas proceedings that his continued

detention was unreasonable, and his sentence also included orders to pay millions of dollars in forfeiture and

restitution. In effect, the fee award at issue directed the

79a

government to pay him instead. In Part II, I explain

why that ruling was an abuse of discretion.

I.

We are now on the wrong side of a Circuit split regarding the government’s sovereign immunity from

EAJA fee awards in habeas proceedings initiated by aliens. The Fourth and Fifth Circuits have held, correctly

in my view, that a § 2241 petition by an alien is not a

“civil action” under the EAJA. See Barco v. Witte, 65

F.4th 782, 785 (5th Cir. 2023); Obando-Segura v. Garland, 999 F.3d 190, 195 (4th Cir. 2021). 2 Those cases emphasize authorities regarding the “hybrid” nature of habeas. 65 F.4th at 785; 999 F.3d at 195. I outline these

and other supporting authorities in Part A.

On the other side of the split, the panel joined the

Second, Ninth, and Tenth Circuits in holding that an alien’s habeas petition is a “civil action.” See Michelin,

2026 WL 263483, at *10; Daley v. Ceja, 158 F.4th 1152,

1164 (10th Cir. 2025); Vacchio v. Ashcroft, 404 F.3d 663,

668-69 (2d Cir. 2005); In re Hill, 775 F.2d 1037, 1040-41

(9th Cir. 1985).

The panel rightly distanced itself from the Second

and Ninth Circuits. See Michelin, 2026 WL 263483, at

*10. The Second Circuit conceded “ambiguity” with respect the question presented, 404 F.3d at 669, which is

Consistent with Barco and Obando-Segura, the Second, Fourth,

and Tenth Circuits have held that habeas petitions by criminal prisoners are not “civil actions” under the EAJA. See O’Brien v. Moore,

395 F.3d 499, 508 (4th Cir. 2005); Sloan v. Pugh, 351 F.3d 1319,

1322-23 (10th Cir. 2003); Ewing v. Rodgers, 826 F.2d 967, 971 (10th

Cir. 1987); Boudin v. Thomas, 732 F.2d 1107, 1111-15 (2d Cir.

1984).

2

80a

correct but means the government is entitled to sovereign immunity. See United States v. Williams, 514 U.S.

527, 531 (1995). Both the Second and Ninth Circuits relied on legislative history to find a sovereign-immunity

waiver not clearly evident from the statutory text, which

is impermissible for reasons the panel explained. See

404 F.3d at 669-70; 775 F.2d at 1040-41; Michelin, 2026

WL 263483, at *3 n.3. The panel instead aligned with

the Tenth Circuit based in large part on an “evaluation

of the historic civil status of habeas actions.” Michelin,

2026 WL 263483, at *10 (citing Daley, 158 F.4th at 1164).

My disagreement with that historical evaluation, including the application of the “old-soil” principle and discussion of other pre- and post-enactment history, is set

forth in Parts B through E.

A.

“The United States enjoys sovereign immunity and

cannot be sued without its consent.” United States

Postal Service v. Konan, 607 U.S. ----, 2026 WL 501765,

at *2 (2026). Sovereign immunity “ensures that elected

officials, not judges, choose when to open the public

purse.” Doe 1 v. United States, 37 F.4th 84, 88 (3d Cir.

2022). There is no dispute that Congress waived the federal government’s sovereign immunity in “any civil

action” when it passed the EAJA in 1980. 28 U.S.C.

§ 2412(d)(1)(A); see also Ardestani v. INS, 502 U.S. 129,

138 (1991). These cases are about the scope of that

waiver. The question is whether the government has

waived sovereign immunity with respect to Petitioners’

§ 2241 applications.

“[W]e must construe any ambiguities in the scope of

a waiver in favor of the sovereign.” United States v.

Miller, 604 U.S. 518, 532 (2025). “Importantly, even

81a

when there is a statutory waiver of immunity, we should

not take it upon ourselves to extend the waiver beyond

that which Congress intended.” Giovanni v. United

States Dep’t of Navy, 906 F.3d 94, 118 (3d Cir. 2018). “It

is the province of Congress, not the courts, to rewrite

the statute to include proceedings that are not clearly

within its scope.” Clarke v. INS, 904 F.2d 172, 178 (3d

Cir. 1990). Thus, courts usually give the government a

wide berth in this space. See, e.g., Libr. of Cong. v.

Shaw, 478 U.S. 310, 318 (1986) (holding that sovereign

immunity barred recovery of interest despite statute

“making the United States liable ‘the same as a private

person’ for ‘costs,’ including ‘a reasonable attorney’s

fee’ ”); Cudjoe ex rel. Cudjoe v. Dep’t of Veterans Affs.,

426 F.3d 241, 244, 247-48 (3d Cir. 2005) (holding that

sovereign immunity barred private lawsuit despite statute subjecting government to “substantive and procedural requirements” including “all civil and administrative penalties and fines”).

The panel conceded as much and noted, correctly,

that “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.” Michelin, 2026 WL

263483, at *3. The panel concluded, however, that the

EAJA “cannot plausibly be read” to exclude habeas

from the term “any civil action.” Id. Suggesting otherwise is the fact that 17 Circuit judges, including a member of the panel, previously reached the opposite conclusion in a variety of settings. See Barco, 65 F.4th at 785;

Obando-Segura, 999 F.3d at 195; Daley v. BOP, 199

F. App’x 119, 121 (3d Cir. 2006); O’Brien, 395 F.3d at

507; Ewing, 826 F.2d at 971; Boudin, 732 F.2d at 111115. While the weight of this authority is not dispositive,

82a

the fact that there are opinions dating back over 30 years

supporting the government’s sovereign immunity in this

context is, at minimum, suggestive of a lack of clarity

about what “any civil action” means in § 2412(d)(1)(A).

To evade those cases, the panel treated as roughly

equivalent terms like “civil in nature,” “civil proceedings,” “civil matter,” and “civil status.” See, e.g., Michelin, 2026 WL 263483, at *7-10. Too much of a stretch

for me. Sovereign immunity is appropriate where “Congress could have more clearly authorized recovery.” In

re Lansaw, 853 F.3d 657, 667 n.8 (3d Cir. 2017). That is

true of the provision at issue, which is apparent upon examination of broader phrasing in different sections

within the same Title of the U.S. Code. See Babcock v.

Kijakazi, 595 U.S. 77, 83 (2022) (“This statute’s plain

meaning becomes even more apparent when viewed in

the broader statutory context.”). In contrast to “any

civil action,” 28 U.S.C. § 2412(d)(1)(A), Congress has used

broader phrases like “an action,” id. § 1292(d)(4)(A)-(B);

“any case,” id. § 1292(c)(1); “any action or proceeding,”

id. § 1355(a); “any action brought in a court of the

United States or of a State,” id. § 1610(d); “any suit, action or proceeding,” id. § 1915(a)(1); “any action, suit or

proceeding,” id. §§ 254, 1404(b), 2403(a); and “an action,

suit or proceeding,” id. § 2107(a). Outside of Title 28,

Congress used the term “suits of a civil nature.” 12

U.S.C. §§ 1789(a)(2), 1819(b)(2)(A), 2277a-7(4)(B); 47

U.S.C. § 33. These phrases are not synonymous. Many

of them were on the books when the EAJA was passed,

which suggests that Congress was aware of its options

at that time. “We usually presume differences in language like this convey differences in meaning.” Wis.

Cent. Ltd. v. United States, 585 U.S. 274, 279 (2018).

“Any civil action” is narrower than the words Congress

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chose in other areas that would have more easily

reached habeas.

Modern § 2241 adjudications can be civil “in nature”

with civil “characteristics,” as the panel demonstrated,

without being EAJA “civil actions.” Using a civil “label”

to characterize adjudication of a habeas petition is

“gross and inexact.” Harris v. Nelson, 394 U.S. 286, 29394 (1969); see also Brown v. Vasquez, 952 F.2d 1164,

1169 (9th Cir. 1991) (“While it is true that a habeas corpus proceeding is civil in nature, it is equally true that

such a proceeding is dramatically different from any

other type of civil action.”). Habeas proceedings are

“elastic” and “fluid[].” Price v. Johnston, 334 U.S. 266,

283 (1948). This makes habeas “unique.” Harris, 394

U.S. at 294. Thus, as the panel observed, courts have

repeatedly referred to habeas as “hybrid.” See Michelin, 2026 WL 263483, at *6; see also, e.g., Parrott v.

Gov’t of V.I., 230 F.3d 615, 620 n.7 (3d Cir. 2000); Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998).

The panel sought to distinguish some of these cases

by arguing that they were “hybrids of civil actions and

criminal ones.” Michelin, 2026 WL 263483, at *5. This

is a distinction without a difference. “There are not

‘criminal habeas writs’ and ‘non-criminal habeas writs’:

there are just writs for habeas corpus.” Obando-Segura,

999 F.3d at 194. Several of the “hybrid” cases cited by

the panel involved challenges to sentencing computations or conditions of confinement. See O’Brien, 395

F.3d at 501; Sloan, 351 F.3d at 1321; Ewing, 826 F.2d at

957; Boudin, 732 F.2d at 1109-10. Those petitioners

were essentially challenging agency action by the responsible custodian, such as the Bureau of Prisons,

which is an objective that lines up well with the relief

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Petitioners sought here. And the fact that immigration

proceedings are civil in nature does not mean that we

are dealing with a situation where a “hybrid of a civil

action and a civil action is a civil action” under the

EAJA. Michelin, 2026 WL 263483, at *5. Immigration

law has its own “specialized administrative procedure,”

and immigration proceedings are not covered by the

EAJA. Marcello v. Bonds, 349 U.S. 302, 308 (1955); see

also Ardestani, 502 U.S. at 138-39. A hybrid between

two specialized proceedings—immigration and habeas

—does not transform the latter into enough of a “civil

action” to require a sovereign-immunity waiver.

The panel also drew false equivalence between habeas and “civil actions” by contending that the Federal

Rules of Civil Procedure “generally presumed habeas

actions were civil actions, even if they were also distinctive ones.” See Michelin, 2026 WL 263483, at *4. That

is not correct. See, e.g., Bracy v. Gramley, 520 U.S. 899,

904 (1997) (distinguishing between a “habeas petitioner”

and “the usual civil litigant in federal court” for purposes of discovery); Hilton v. Braunskill, 481 U.S. 770,

776 n.5 (1987) (acknowledging “differences between

general civil litigation and habeas corpus proceedings”);

Preiser v. Rodriguez, 411 U.S. 475, 495-96 (1973) (distinguishing between “swift, flexible, and summary determination[s]” in habeas proceedings and “an original plenary civil action [under § 1983], governed by the full

panoply of the Federal Rules of Civil Procedure”).

A habeas proceeding is not a “civil action” under the

Civil Rules, and I do not see any presumption to that

effect. To illustrate the point, “[l]et’s count some of the

ways in which habeas proceedings deviate from the Civil

Rules.” Banister v. Davis, 590 U.S. 504, 528 (2020) (Alito,

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J., dissenting). “There shall be one form of action to be

known as ‘civil action.’ ” Fed. R. Civ. P. 2 (1980). “A civil

action is commenced by filing a complaint with the

court,” and “[n]o other pleading shall be allowed.” Fed.

R. Civ. P. 3, 7(a) (1980); see also In re Teter, 90 F.4th

493, 499 (6th Cir. 2024) (“As neither [debtor] nor the

[Bankruptcy] Trustee filed a complaint, it is difficult to

believe that this proceeding is the kind to which the

EAJA applies.”). Habeas proceedings are commenced

by an “application,” 28 U.S.C. § 2241(b), which is also

referred to as a “petition” under Habeas Rule 2.

The required contents of a petition under Habeas

Rule 2 are different than the pleading standards for a

complaint under Civil Rule 8. The Civil Rules do not

provide for a screening procedure like the one in Habeas

Rule 4, and the statutory version of that screening process applies to a narrower class of civil plaintiffs. See 28

U.S.C. § 1915(e)(2). There is no habeas analog to dismissal motions under Civil Rule 12 and, in the absence

of defense motion practice, responsive pleadings are

generally required as a default under the Civil Rules.

That is not the case in habeas proceedings. See Browder

v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 269 n.14 (1978);

see also Habeas Rule 5. Under Habeas Rule 6, discovery procedures under the Civil Rules are only available

upon a showing of “good cause,” and the party seeking

discovery must “provide reasons” for each request. Habeas Rule 6(a)-(b). Discovery in a “civil action” is not so

restrictive. The fact-finding procedures at the summary

judgment and trial stages of a civil action are nowhere

to be found in the Habeas Rules.

Despite these and other differences, the panel relied

on the 1980 version of Rule 81(a) to assert that, “at the

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time of the EAJA’s enactment, the Federal Rules of

Civil Procedure treated habeas proceedings as civil actions.” Michelin, 2026 WL 263483, at *4. That is not

quite right. See AARP v. Trump, 605 U.S. 91, 107 (2025)

(Alito, J., dissenting) (“[I]n accordance with Rule 81, we

have acknowledged that some Federal Rules are inapplicable in habeas.”); Schlanger v. Seamans, 401 U.S.

487, 490 n.4 (1971) (“Though habeas corpus is technically

‘civil,’ it is not automatically subject to all the rules governing ordinary civil actions.”). Rule 81 referred to habeas “proceedings” not “actions.” Fed. R. Civ. P. 81(a)(2)

(1980). If a habeas “proceeding” was a “civil action”

for purposes of the Civil Rules, Rule 81(a) would be

superfluous—that is, we would not need the reference to

habeas in Rule 81(a) if it is as clear as the panel suggested that habeas is a “civil action.”

In 1980, Rule 81(a) stated that the Civil Rules applied

only “to the extent that the practice in such proceedings

[1] is not set forth in statutes of the United States and

[2] has heretofore conformed to the practice in civil actions.” See Fed. R. Civ. P. 81(a)(2) (1980). Those were

big caveats. Habeas practice had been governed by

“statutes of the United States,” id., since the Judiciary

Act of 1789. See Pub. L. No. 1-20, § 14, 1 Stat. 73, 81-82

(1789). Distinct habeas procedures that differed from

the Civil Rules were set forth in the Habeas Rules,

which were approved by Congress prior to the enactment of the EAJA, as well as existing statutes. See Pub.

L. No. 94-426, § 1, 90 Stat. 1334, 1334 (1976); see also

8 U.S.C. §§ 2241-2254 (setting forth additional habeas

procedures). Because “[t]he problems presented by

these [habeas] proceedings are materially different

from those dealt with in the Federal Rules of Civil Procedure,” “reliance upon usage and the opaque language

87a

of Civil Rule 81(a)(2) is transparently inadequate.” Harris, 394 U.S. at 300 n.7.

All of this context helps to explain why seven judges

of this Court refused to treat habeas and “ordinary civil

cases” as “indistinguishable” in Bendolph. See 409 F.3d

at 166. While we have described habeas as “civil in nature,” that does not mean the § 2241 petitions at issue

were “civil actions” under the EAJA. See Long v. Wilson, 393 F.3d 390, 402 (3d Cir. 2004) (“While civil in nature, habeas corpus cases are different from ordinary

civil cases where only the interests of the parties are involved.”); Santana v. United States, 98 F.3d 752, 754 (3d

Cir. 1996) (“[H]abeas corpus cases are, in effect, hybrid

actions whose nature is not adequately captured by the

phrase ‘civil action.’ ”); Callwood v. Enos, 230 F.3d 627,

632 (3d Cir. 2000) (“A suit seeking a writ of habeas corpus, although admittedly somewhat of a hybrid, is considered civil in nature.”); Lee v. Johnson, 799 F.2d 31, 40

(3d Cir. 1986) (reasoning that the Second Circuit’s holding in Boudin “certainly lends some support to the government’s proposed restrictive interpretation of the

‘civil action’ language in the [EAJA]”).

The panel described Santana as an instance where

this Court “acknowledged that the ‘plain meaning’ and

‘literal scope’ of the phrase ‘civil action’ include habeas

actions.” Michelin, 2026 WL 263483, at *4 (quoting

Santana, 98 F.3d at 754). Those words appear in Santana, but they are qualified in the opinion by the phrase

“[a]t first blush.” 98 F.3d at 754. The qualifier was necessary because Santana held that the term “civil action”

in 28 U.S.C. § 1915(b), from the 1996 Prison Litigation

Reform Act, “lacks a plain meaning” and does not include “habeas proceedings.” Id. at 755. We later ex-

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tended that reasoning to the neighboring three-strikes

provision, § 1915(g). See Garrett v. Murphy, 17 F.4th

419, 431 (3d Cir. 2021). Thus, Santana and Garrett provide strong precedential support for the government’s

position here, as do Bendolph, Long, Callwood, and Lee.

Seven other Circuits have interpreted “civil action”

in § 1915, as in Santana and Garrett, to exclude habeas

proceedings. 3 Similarly, the Supreme Court has held

that “civil action” in 28 U.S.C. § 1391(e) does not include

habeas. See Schlanger, 401 U.S. at 490 n.4. The panel

cherry-picked from the discussion of Schlanger in Stafford v. Briggs, without noting the Stafford Court’s conclusion that “[t]he clear [import] of our statement in

Schlanger is that Congress did not intend the phrase

‘civil action’ to be given the sweeping definition argued

for it in that case.” 444 U.S. 527, 543 (1980).

The panel sought to distinguish Schlanger, Harris,

and Santana by arguing that those opinions “reached

that conclusion by doing something we may not: overriding the plain meaning of statutory text with legislative

history.” Michelin, 2026 WL 263483, at *6. True, “[l]egislative history cannot supply a waiver that is not clearly

evident from the language of the statute.” FAA v.

Cooper, 566 U.S. 284, 290 (2012). I certainly share the

panel’s view that, ideally, “[w]e do not read statutes this

way anymore” because of the limited value that legislaSee Paige v. Bacarisse, 80 F. App’x 299, 300 (5th Cir. 2003);

Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775,

780 (10th Cir. 1999); Blair-Bey v. Quick, 151 F.3d 1036, 1040 (D.C.

Cir. 1998); Anderson v. Singletary, 111 F.3d 801, 805 (11th Cir.

1997); Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997); Reyes v.

Keane, 90 F.3d 676, 678 (2d Cir. 1996); Martin v. United States, 96

F.3d 853, 855 (7th Cir. 1996).

3

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tive history offers to the project of determining a statute’s single, best meaning. Michelin, 2026 WL 263483,

at *6; see also Conroy v. Aniskoff, 507 U.S. 511, 519

(1993) (Scalia, J., concurring in the judgment) (“We are

governed by laws, not by the intentions of legislators.”).

But Schlanger, Harris, and Santana are compelling because of the manner in which they explained that habeas

is sui generis, not because of their legislative history

analyses. There is no basis for casting aside the reasoning in those cases, which helps to explain why “any civil

action” is ambiguous in the EAJA.

More broadly, in light of the case law construing

§ 1391(e), § 1915(b), and § 1915(g) to exclude habeas, I

respectfully disagree that “[e]very time Congress has

used ‘any civil action’ or a cognate, the phrase encompasses habeas proceedings, save where Congress expressly excluded them.” Michelin, 2026 WL 263483, at

*9. The word “any” in “any civil action” cannot bear the

weight placed upon it by the panel when making that assertion. Id. at *7-8. “Any” must be interpreted “narrowly” where “a broad reading . . . implicate[s] sovereignty concerns.” Ali v. BOP, 552 U.S. 214, 220 n.4

(2008). The Ali Court cited Raygor v. Regents of University of Minnesota, where the Supreme Court relied

on sovereign immunity principles to conclude that “any

civil action” in 28 U.S.C. § 1367(a) did not include claims

against States, “even though nothing in the statute expressly excludes such claims.” 534 U.S. 533, 541 (2002).

Raygor, in turn, cited Blatchford v. Native Village of

Noatak, where the Court held that “all civil actions” in

28 U.S.C. § 1362 did not include claims by Indian tribes

against nonconsenting States. 501 U.S. 775, 786-87

(1991) (finding no sovereign-immunity waiver in the absence of “unmistakably clear” language from Congress);

90a

see also Atascadero State Hosp. v. Scanlon, 473 U.S.

234, 245-46 (1985) (holding that sovereign immunity

barred recovery against State despite statute authorizing claims against “any recipient of Federal assistance”); Coll. Sav. Bank v. Fla. Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666, 682 (1999) (explaining

that federal sovereign immunity is “obviously the closest analogy” to state sovereign immunity). Thus, Ali,

Raygor, Blatchford, and Scanlon are additional powerful authority supporting the government’s interpretation of the EAJA.

B.

The panel started with quotes from Blackstone and

placed significant emphasis on the old-soil principle in

concluding that “any civil action” un

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