EAJA “Any Civil Action” Includes Immigration Habeas Petitions, Permitting Attorney-Fee Awards Against the United States

Introduction

This Third Circuit matter arises from consolidated appeals involving two immigration detainees, Adolph Michelin and Adewumi Abioye, who obtained habeas relief under 28 U.S.C. § 2241 challenging the constitutionality of their continued detention pending removal-related proceedings. After prevailing, they sought attorney’s fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A), which authorizes awards to prevailing parties in “any civil action” against the United States unless the Government’s position was “substantially justified” or “special circumstances” make an award unjust.

The panel (as described in the dissents) held that EAJA’s sovereign-immunity waiver for “any civil action” unambiguously reaches immigration habeas petitions, and affirmed fee awards. The Government petitioned for panel rehearing and rehearing en banc. On March 2, 2026, the Third Circuit denied rehearing. The denial left the panel decision intact, while two dissents (Judge Bove’s dissent joined by Judges Porter, Matey, and Phipps; and Judge Mascott’s separate dissent) argued that the panel’s approach conflicted with sovereign-immunity principles, Third Circuit habeas jurisprudence, and the demanding “clear statement” rule.

Summary of the Opinion (Rehearing Denial and What It Leaves in Place)

The court denied petitions for panel rehearing and rehearing en banc. Five judges (Matey, Porter, Phipps, Bove, and Mascott) would have granted rehearing en banc, but the required majority did not vote to rehear the cases.

As a practical matter, the denial cements the panel’s operative holdings (as characterized by the dissents): (1) EAJA’s “any civil action” waiver covers § 2241 immigration habeas petitions, allowing fee awards against the Government; and (2) on the records presented, the Government did not carry the “substantial justification” and/or “special circumstances” defenses to fee liability in these detainee-detention challenges.

Analysis

1) Precedents Cited

A. Sovereign immunity and the “clear statement” requirement

  • Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382, 387-88 (2023):
    Both dissents treat this as the controlling modern articulation of the clear-statement rule: if there is a “plausible interpretation” preserving immunity, a waiver is not “unambiguous.” Judge Bove uses it to argue that the existence of a multi-circuit split itself demonstrates plausibility of competing readings, defeating any claim of unambiguous waiver.
  • United States v. Williams, 514 U.S. 527, 531 (1995):
    Cited for the proposition that ambiguity in a waiver provision must be resolved in favor of immunity. Judge Bove emphasizes the Second Circuit’s concession of “ambiguity” in Vacchio as dispositive under this rule.
  • United States v. Miller, 604 U.S. 518, 532 (2025):
    Invoked to reinforce that “ambiguities” in the “scope of a waiver” must be construed “in favor of the sovereign.” The dissent uses this to argue that even if habeas has civil features, the statutory term “civil action” must be read narrowly absent unmistakable clarity.
  • FAA v. Cooper, 566 U.S. 284, 290 (2012):
    Used to reject legislative history as a basis to “supply a waiver.” Judge Bove notes that some circuits relied on legislative history in habeas/EAJA cases (Vacchio, In re Hill), which he argues is impermissible in waiver analysis.
  • Libr. of Cong. v. Shaw, 478 U.S. 310, 318 (1986) and Cudjoe ex rel. Cudjoe v. Dep't of Veterans Affs., 426 F.3d 241, 244, 247-48 (3d Cir. 2005):
    Cited to show courts routinely reject efforts to extend waiver language beyond what Congress clearly authorized, even where statutes sound broad.
  • Ali v. BOP, 552 U.S. 214, 220 n.4 (2008); Raygor v. Regents of University of Minnesota, 534 U.S. 533, 541 (2002); Blatchford v. Native Village of Noatak, 501 U.S. 775, 786-87 (1991); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 245-46 (1985); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999):
    Deployed to argue that even words like “any” or “all” in jurisdictional or remedial statutes may be read narrowly when sovereignty concerns are in play, undermining the panel’s emphasis (as described) on “any civil action” as necessarily encompassing habeas.
  • United States Postal Service v. Konan, 607 U.S. ----, 2026 WL 501765, at *2 (2026) and Doe 1 v. United States, 37 F.4th 84, 88 (3d Cir. 2022):
    Cited for the foundational premise: immunity “opens the public purse” only when elected officials clearly say so.

B. Whether habeas is (or is not) a “civil action”: “hybrid” character and procedural distinctiveness

  • United States v. Bendolph, 409 F.3d 155, 166 (3d Cir. 2005) (en banc):
    Central to Judge Bove’s critique. He argues the panel’s statement that “any civil action” unambiguously includes habeas conflicts with Bendolph’s rejection of the “premise that habeas cases and ordinary civil cases are indistinguishable.”
  • Harris v. Nelson, 394 U.S. 286, 293-94 (1969):
    Used to stress that labeling habeas “civil” is “gross and inexact,” and that habeas is “unique,” “elastic,” and “fluid,” supporting a narrower understanding of “civil action.”
  • Preiser v. Rodriguez, 411 U.S. 475, 495-96 (1973); Hilton v. Braunskill, 481 U.S. 770, 776 n.5 (1987); Bracy v. Gramley, 520 U.S. 899, 904 (1997):
    Cited to show the Supreme Court has repeatedly treated habeas as procedurally different from ordinary civil litigation, even when it shares some civil features.
  • Banister v. Davis, 590 U.S. 504, 528 (2020) (Alito, J., dissenting):
    Quoted for a catalog of ways habeas deviates from the Federal Rules of Civil Procedure (commencement by petition/application, screening, limited discovery, distinctive pleading and response norms), supporting the dissent’s claim that “civil action” is a term of art tied to the Civil Rules.
  • Schlanger v. Seamans, 401 U.S. 487, 490 n.4 (1971) and Stafford v. Briggs, 444 U.S. 527, 543 (1980):
    Schlanger is cited for the proposition that “civil action” in 28 U.S.C. § 1391(e) does not include habeas; Stafford is used to underscore Schlanger’s “clear import” that Congress did not intend “civil action” to be given the sweeping definition urged by litigants.
  • Browder v. Dir., Dep't of Corr. of Ill., 434 U.S. 257, 268-69 & 269 n.14 (1978):
    Used to show that while some Civil Rules apply in habeas, Rule 81 recognizes the supremacy of habeas statutes/rules; also cited for differences in responsive pleadings and the distinctive habeas procedural scheme.
  • Price v. Johnston, 334 U.S. 266, 283 (1948):
    Cited to emphasize habeas flexibility and distinctness, supporting the dissent’s resistance to equating habeas with “civil actions.”
  • Parrott v. Gov't of V.I., 230 F.3d 615, 620 n.7 (3d Cir. 2000) and Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998):
    Referenced as Third Circuit acknowledgments of habeas as “hybrid,” a label the dissent treats as incompatible with the panel’s “unambiguously civil action” conclusion.
  • Brown v. Vasquez, 952 F.2d 1164, 1169 (9th Cir. 1991):
    Cited for the proposition that habeas is “civil in nature” yet “dramatically different” from other civil actions, supporting the dissent’s narrow reading of “civil action.”

C. EAJA and immigration-specific context

  • Ardestani v. INS, 502 U.S. 129, 138-39 (1991):
    Cited to confirm EAJA does waive federal immunity in covered “civil actions,” but also to highlight that immigration administrative proceedings are not covered by EAJA—underscoring the dissents’ concern with extending fee shifting into immigration-adjacent litigation without clear text.
  • Marcello v. Bonds, 349 U.S. 302, 308 (1955):
    Cited for the proposition that immigration proceedings involve a “specialized administrative procedure,” reinforcing the dissent’s view that immigration’s civil character does not automatically transform habeas into a “civil action” for EAJA purposes.
  • Clarke v. INS, 904 F.2d 172, 178 (3d Cir. 1990) and Giovanni v. United States Dep't of Navy, 906 F.3d 94, 118 (3d Cir. 2018):
    Used for cautionary principles: courts should not “rewrite the statute” to cover proceedings not clearly within its scope and should not extend waivers beyond congressional intent.

D. The Circuit split on EAJA fees in immigration habeas

  • Barco v. Witte, 65 F.4th 782, 785 (5th Cir. 2023) and Obando-Segura v. Garland, 999 F.3d 190, 195 (4th Cir. 2021):
    Cited by both dissents as the opposing side of the split—holding that an alien’s § 2241 petition is not a “civil action” under EAJA—emphasizing habeas’s “hybrid” nature and sovereign-immunity caution.
  • 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):
    Identified as aligning with the panel’s approach (EAJA covers immigration habeas). Judge Bove distinguishes them as relying (in part) on ambiguity or legislative history, which he argues cannot sustain a clear waiver.

E. “Civil action” in other Title 28 contexts and procedural term-of-art arguments

  • Ex parte Collett, 337 U.S. 55, 58 (1949):
    Cited (through the dissent’s discussion) to support that Congress imported “civil action” from the Federal Rules in codifying Title 28, reinforcing the “term of art” argument tethering EAJA’s phrase to Civil Rules usage.
  • In re Teter, 90 F.4th 493, 499 (6th Cir. 2024):
    Used to illustrate the procedural-commencement point: if no “complaint” is filed, it is harder to characterize the proceeding as a “civil action” in the Civil Rules sense.
  • Wis. Cent. Ltd. v. United States, 585 U.S. 274, 279 (2018) and Babcock v. Kijakazi, 595 U.S. 77, 83 (2022):
    Cited for ordinary textual/contextual canons: differences in statutory phrasing and broader statutory context can signal narrower meaning.

F. “Substantial justification,” “special circumstances,” and fee-award discretion

  • Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir. 1993); Williams v. Astrue, 600 F.3d 299, 302 (3d Cir. 2009); Russell v. Heckler, 814 F.2d 148, 153 (3d Cir. 1987):
    Cited to define “substantial justification” (reasonable basis in law and fact), to reject any presumption that losing on the merits implies fees, and to distinguish close/unsettled issues (generally substantially justified) from positions that “clearly offend established precedent.”
  • Morgan v. Perry, 142 F.3d 670, 683 (3d Cir. 1998):
    Cited for the abuse-of-discretion standard applied to fee determinations and for the “definite and firm conviction” formulation.
  • Brinker v. Guiffrida, 798 F.2d 661, 667-68 (3d Cir. 1986) and Taylor v. United States, 815 F.2d 249, 253 (3d Cir. 1987):
    Used to describe “special circumstances” (novel issues; equitable/unclean hands) and to emphasize courts must examine “all the circumstances” to decide if an award would be unjust.
  • Astrue v. Ratliff, 560 U.S. 586, 591-93 (2010):
    Cited to highlight that EAJA fees effectively direct federal funds to (or for the benefit of) the prevailing litigant, intensifying the dissents’ equitable objections where the litigant owes restitution/forfeiture.

2) Legal Reasoning

A. The panel’s operative rule (as described by the dissents)

The central legal determination left in force is that the phrase “any civil action” in 28 U.S.C. § 2412(d)(1)(A) unambiguously encompasses immigration habeas petitions under 28 U.S.C. § 2241, thereby allowing EAJA fee awards against the United States when detainees prevail. The dissents describe the panel as relying on a broad reading of “any,” historical characterizations of habeas as “civil,” and the absence of an express statutory exclusion for habeas.

B. The dissents’ contrary methodology: “civil action” as a Civil Rules term of art

Judge Bove’s dissent frames the disagreement as one of interpretive anchor and waiver discipline. In his view:

  1. Waiver clarity is the threshold. If “civil action” can plausibly be read to exclude habeas, the clear-statement rule requires that result.
  2. “Civil action” should be read in its modern transplanted sense. The dissent argues that the relevant “old soil” is not Blackstone-era habeas practice, but the Rules Enabling Act, the Federal Rules of Civil Procedure, and Title 28’s codification history—where “civil action” is the unitary procedural form commenced by a complaint.
  3. Habeas is not a “civil action” under that scheme. Habeas begins by application/petition, has specialized screening and response rules, and incorporates civil procedures only selectively (Rule 81 and the Habeas Rules), which the dissent treats as strong evidence that “civil in nature” is not the same as “civil action.”
  4. Circuit conflict and mixed judicial characterizations demonstrate ambiguity. The dissent treats the deep split (and Supreme Court/Third Circuit statements distinguishing habeas from ordinary civil litigation) as proof that Congress did not speak with unmistakable clarity.

C. “Substantial justification” and “special circumstances” in immigration-detention due process habeas

Judge Bove also argues the fee awards were independently improper because:

  • The Government’s detention positions were “substantially justified” given the statutory command for detention (e.g., 8 U.S.C. § 1226(c) in Abioye’s case, as the dissent discusses) and the fact-intensive, balancing-test nature of the due process framework referenced (German Santos v. Warden Pike County Correctional Facility).
  • “Special circumstances” made fees “unjust,” particularly where the prevailing detainee’s factual background (alleged fraud, overstay, absconding, restitution and forfeiture obligations) made taxpayer-funded fee shifting inequitable.

3) Impact

The immediate doctrinal impact in the Third Circuit is significant: prevailing immigration habeas petitioners may seek EAJA fees on the theory that their petitions are “civil actions,” increasing the Government’s fee exposure in detention litigation.

The broader impact is shaped by three features highlighted in the dissents:

  • Entrenchment within a Circuit split. The Third Circuit’s position (as described) places it with the Second, Ninth, and Tenth Circuits and against the Fourth and Fifth. That split heightens the chance of Supreme Court review and creates uneven incentives and fiscal consequences across jurisdictions.
  • Incentive effects. Judge Mascott stresses that fee availability may encourage more fee-driven habeas filings challenging detention length and process, and notes district-court decisions allegedly already “encourag[ing] detainees” to seek fees (e.g., Cova v. Rose; Aguirre-Guevara v. Oddo).
  • Fee litigation as a “second front.” If routine detention challenges can yield fee exposure whenever courts disagree with the Government’s application of a multi-factor due process standard, the Government may face increased pressure to settle, accelerate bond hearings, or alter detention-review practices—effects the dissents regard as policy choices that should be made by Congress, not inferred from ambiguous text.

Complex Concepts Simplified

  • Sovereign immunity: The United States cannot be required to pay money (including attorney’s fees) unless Congress clearly authorizes it. Courts read waiver language narrowly.
  • EAJA fee shifting (28 U.S.C. § 2412(d)(1)(A)): A prevailing party can recover “fees and other expenses” in “any civil action” against the United States unless the Government’s position was “substantially justified” or special circumstances make fees unjust.
  • “Substantially justified”: Not “more likely than not correct,” but reasonably grounded in law and fact; the Government can lose and still be substantially justified.
  • “Special circumstances”: An equitable safety valve allowing a court to deny fees even to a prevailing party where awarding fees would be unfair in context (e.g., novel issues or unclean hands).
  • Habeas as “civil,” “criminal,” or “hybrid”: Habeas is often called “civil in nature,” but it has its own rules and does not necessarily fit the Federal Rules’ concept of a “civil action” commenced by a complaint.
  • “Old-soil” principle: When Congress borrows a term of art from another legal source, it is presumed to bring the established meaning with it. The dissents argue the relevant source is the Federal Rules/Title 28 codification (civil-action term of art), while the panel (as described) drew more on historical characterizations of habeas as civil.

Conclusion

The Third Circuit’s denial of rehearing leaves in place a consequential rule: for EAJA purposes, immigration habeas petitions under 28 U.S.C. § 2241 fall within “any civil action,” enabling attorney-fee awards against the United States when detainees prevail and the Government cannot establish “substantial justification” or “special circumstances.”

The dissents frame the decision as a significant expansion of federal fee liability that, in their view, conflicts with the demanding clear-statement rule for sovereign-immunity waivers, disregards habeas’s procedural distinctiveness recognized in cases like United States v. Bendolph and Harris v. Nelson, and deepens an acknowledged Circuit split. Whether the panel’s reading becomes a durable nationwide rule will likely depend on further appellate development—potentially Supreme Court intervention—given the financial stakes and the unresolved interpretive divide.