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The EAJA: Inapplicability to Habeas Claims

J. Dalton Courson

The EAJA: Inapplicability to Habeas Claims
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On May 28, 2021, the U.S. Court of Appeals for the Fourth Circuit issued an opinion interpreting the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, as inapplicable to habeas claims. Obando-Segura v. Garland, No. 19-7736, 2021 WL 2171737. 

The EAJA: Overview

The EAJA provides a waiver of federal sovereign immunity for the recovery of attorney fees for parties who prevail in nontort civil litigation against the United States. Before Congress passed the EAJA, federal law did not permit prevailing parties to recover fees against the federal government unless otherwise authorized by statute. Congress enacted the EAJA to address the concern that litigation expense may deter people from bringing meritorious claims. See 14 Wright & Miller, Federal Practice & Procedure: Jurisdiction and Related Matters § 3660.1 (Helen Hershkoff ed., 4th ed. 1998).

Under the EAJA, courts shall award attorney fees to a prevailing party in nontort litigation against the federal government unless the court finds that the government’s position was substantially justified or that an award would be unjust. The statute states thus:

[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 . . . 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).

Obando-Segura: Court Analysis

Obando-Segura arose from a habeas proceeding involving a noncitizen who had been detained by the Department of Homeland Security. After continued detention, the noncitizen filed a writ of habeas corpus seeking an immediate release or a bond hearing. 2021 WL 2171737, at *1. The district court ordered a bond hearing before an immigration judge, who ordered the release of the plaintiff on bond. The plaintiff then filed a motion to recover his attorney fees and cited the EAJA. The district court denied a fee recovery, holding that a habeas proceeding is not a “civil action” under the EAJA. Id.

On appeal, the Fourth Circuit affirmed the denial of a fee recovery. The appellate panel began its analysis by noting that the EAJA operates as a waiver of sovereign immunity, and such waivers are strictly construed. Id. at *2. Thus, the court framed the question as whether Congress had expressed an unequivocal statutory intent to include habeas proceedings within the definition of civil action.

Tracing earlier case law, the court described habeas proceedings as “unique, hybrid” proceedings that are not clearly civil actions. Id. at *5. According to the court, habeas cases straddle the line between civil and criminal law because their function is to secure release from wrongful detention. Id. at *3. Under an earlier Fourth Circuit precedent, the court had concluded that a habeas proceeding in a case involving a criminal defendant who prevailed in a habeas case challenging his criminal detention was not a civil action for the purpose of the EAJA. O’Brien v. Moore, 395 F.3d 499, 508 (4th Cir. 2005). According to the Obando-Segura court, although O’Brien arose from a criminal case, its result applied to all habeas cases because there is only a single type of habeas writ—there are not “criminal” habeas writs and “non-criminal” habeas writs. 2021 WL 2171737, at *3. The underlying nature of the detention was thus irrelevant. According to the court, because no habeas proceeding is plainly a civil action under the Fourth Circuit’s interpretation of the EAJA, the EAJA does not permit recovery of attorney fees in any habeas cases. Id. at *4.

Dissenting, Judge Barbara Keenan noted that the plaintiff’s case was plainly civil in nature and had no criminal aspects. Id. at *5. The dissent further noted that while the U.S. Supreme Court has at times described the unique features of habeas cases, the Court has repeatedly defined them as civil in nature. Id. at *6 (citing cases). The dissent additionally argued that because Congress expressly excluded tort actions from the scope of the EAJA, it was improper for the court to assume that Congress had also implicitly intended to exclude other types of civil proceedings.

Circuit Split

The Fourth Circuit’s decision creates a split among the federal circuits. The Second and Ninth Circuits previously held that habeas proceedings seeking release from immigration were indeed civil actions that fell within the scope of the EAJA. Vacchio v. Ashcroft, 404 F.3d 663 (2d Cir. 2005); In re Hill, 775 F.2d 1037 (9th Cir. 1985).

Practitioners who handle habeas cases may therefore want to monitor upcoming cases under the EAJA for further developments.