EAJA Fee Awards for Immigration-Detention Habeas Petitions: “Any Civil Action” Includes § 2241 in the Third Circuit

Case: Adolph Michelin v. Warden Moshannon Valley Correctional Center (consolidated with Adewumi Abioye v. Warden Moshannon Valley Processing Center)  |  Court: U.S. Court of Appeals for the Third Circuit  |  Date: March 2, 2026

1. Introduction

These consolidated appeals arise from immigration-detention habeas litigation brought by two noncitizens, Adolph Michelin and Adewumi Abioye, who challenged continued detention while contesting removal. After obtaining relief (in the form of bond-hearing-related orders), they sought attorneys’ fees against the United States under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A).

The key interpretive issue—described in the dissents as the centerpiece of an acknowledged circuit split—was whether the EAJA’s sovereign-immunity waiver for fees in “any civil action” unambiguously includes immigration-related habeas petitions under 28 U.S.C. § 2241. A second issue, pressed at least as to Abioye, concerned whether fee awards were independently barred because the Government’s position was “substantially justified” or because “special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A).

On March 2, 2026, the Third Circuit denied rehearing by the panel and en banc. Five active judges (Matey, Porter, Phipps, Bove, and Mascott) would have granted en banc rehearing.

2. Summary of the Opinion (Denial of Rehearing) and the Governing Holding Left in Place

The court’s order contains no merits analysis; it simply denies rehearing. The practical consequence, as the dissents emphasize, is that the panel decision stands as circuit precedent.

As characterized in the dissents, the panel held that:

• The EAJA’s fee provision for “any civil action,” 28 U.S.C. § 2412(d)(1)(A), unambiguously encompasses these immigration-detention habeas petitions, thereby waiving federal sovereign immunity for fee awards in such cases. (Michelin v. Warden Moshannon Valley Corr. Ctr., 2026 WL 263483, at *3 (3d Cir. 2026) (as quoted in the dissents))
• Fee awards were permissible and, on the dissents’ account, the panel also endorsed the view that the Government’s litigation position lacked “substantial justification” (at least in relevant respects), and rejected (or narrowed) “special circumstances” arguments that would defeat fees.

3. Analysis

3.1. Precedents Cited and How They Frame the Dispute

A. Sovereign immunity and the “clear statement” requirement

• United States Postal Service v. Konan, 607 U.S. ----, 2026 WL 501765, at *2 (2026): cited for the foundational proposition that the United States “cannot be sued without its consent.” The dissents use this to anchor the interpretive lens: fee liability is a direct draw on the public fisc.
• Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382, 388 (2023): cited for the “demanding” clear-statement rule—if there is a “plausible interpretation” preserving immunity, there is no waiver. Both dissents treat the circuit split itself as evidence of plausibility/ambiguity.
• United States v. Miller, 604 U.S. 518, 532 (2025): invoked for construing ambiguities in the scope of waiver in favor of the sovereign.
• United States v. Williams, 514 U.S. 527, 531 (1995): used (in Judge Bove’s discussion of the Second Circuit) to underscore that “ambiguity” defeats a claimed waiver.
• Doe 1 v. United States, 37 F.4th 84, 88 (3d Cir. 2022), Giovanni v. United States Dep't of Navy, 906 F.3d 94, 118 (3d Cir. 2018), and Clarke v. INS, 904 F.2d 172, 178 (3d Cir. 1990): cited to reinforce institutional caution against extending waivers beyond what Congress clearly authorized.
• 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): examples offered by Judge Bove to illustrate the judiciary’s refusal to infer monetary exposure absent unmistakable authorization.

B. Whether habeas is a “civil action”: hybrid-characterization cases and procedural-rule cases

• United States v. Bendolph, 409 F.3d 155, 166 (3d Cir. 2005) (en banc): Judge Bove’s central intra-circuit tension point; Bendolph rejected “the premise that habeas cases and ordinary civil cases are indistinguishable.” The dissents argue this undercuts any claim that “civil action” unambiguously includes habeas.
• Harris v. Nelson, 394 U.S. 286, 293-94 (1969): used to emphasize that labeling habeas “civil” is “gross and inexact” and that habeas is “unique.”
• Schlanger v. Seamans, 401 U.S. 487, 490 n.4 (1971), and Stafford v. Briggs, 444 U.S. 527, 543 (1980): invoked to show that “civil action” in other Title 28 provisions has been construed not to include habeas, weakening any assertion that “any civil action” necessarily reaches habeas.
• Preiser v. Rodriguez, 411 U.S. 475, 495-96 (1973), Hilton v. Braunskill, 481 U.S. 770, 776 n.5 (1987), and Bracy v. Gramley, 520 U.S. 899, 904 (1997): cited to demonstrate that habeas differs materially from “general civil litigation.”
• Banister v. Davis, 590 U.S. 504, 528 (2020) (Alito, J., dissenting): cited for a catalog of ways habeas deviates from ordinary civil procedure—supporting the dissenters’ view that “civil action” as a term of art tracks the Federal Rules of Civil Procedure.
• Santana v. United States, 98 F.3d 752, 754-55 (3d Cir. 1996), and Garrett v. Murphy, 17 F.4th 419, 431 (3d Cir. 2021): relied on heavily by Judge Bove to show the Third Circuit has previously treated “civil action” (in 28 U.S.C. § 1915) as not having a plain meaning that automatically includes habeas.
• Callwood v. Enos, 230 F.3d 627, 632 (3d Cir. 2000), Long v. Wilson, 393 F.3d 390, 402 (3d Cir. 2004), and Lee v. Johnson, 799 F.2d 31, 40 (3d Cir. 1986): used to demonstrate the circuit’s repeated “hybrid” descriptions and its awareness that other circuits treated EAJA “civil action” narrowly in habeas settings.

C. The circuit split on EAJA fees in immigration habeas

• Against EAJA coverage: Barco v. Witte, 65 F.4th 782, 785 (5th Cir. 2023); Obando-Segura v. Garland, 999 F.3d 190, 195 (4th Cir. 2021). These decisions are cited as emphasizing habeas’s “hybrid” nature and concluding a § 2241 petition is not a “civil action” for EAJA purposes.
• For EAJA coverage: 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 dissents portray the Third Circuit panel as joining this side.

D. Interpretive canons and “any civil action” in sovereign-sensitive contexts

• Ali v. BOP, 552 U.S. 214, 220 n.4 (2008): cited for reading “any” narrowly where sovereignty concerns are implicated.
• Raygor v. Regents of University of Minnesota, 534 U.S. 533, 541 (2002), and Blatchford v. Native Village of Noatak, 501 U.S. 775, 786-87 (1991): used to show that even sweeping phrases like “any civil action” or “all civil actions” may not reach sovereign defendants absent unmistakable clarity.
• Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 245-46 (1985), and Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999): invoked as additional confirmation that sovereign immunity doctrine resists inference and analogy.

E. Immigration detention due process and the fee “substantial justification” backdrop

• German Santos v. Warden Pike County Correctional Facility, 965 F.3d 203, 210-12 (3d Cir. 2020), and Chavez Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 476 (3d Cir. 2015): the core Third Circuit due-process framework described by Judge Bove—a multi-factor, fact-intensive inquiry into when detention becomes unreasonable and a bond hearing becomes required.
• Demore v. Kim, 538 U.S. 510, 531 (2003), and Jennings v. Rodriguez, 583 U.S. 281, 303-06 (2018): invoked to underscore Congress’s mandatory-detention choice in 8 U.S.C. § 1226(c) and to frame why, in the dissenters’ view, the Government is often substantially justified in defending its statutory mandate.
• 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), and Russell v. Heckler, 814 F.2d 148, 153 (3d Cir. 1987): cited to define “substantial justification” and to emphasize that losing on the merits does not automatically justify a fee award.
• 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): relied upon for the EAJA’s “special circumstances” safety valve (novel issues; equitable unclean-hands-type considerations).

3.2. Legal Reasoning (as described and contested in the dissents)

A. The panel’s premise: “any civil action” unambiguously includes § 2241 habeas

The dissents describe the panel as adopting a largely textual/historical approach: because habeas has long been “civil” in character, “any civil action” necessarily includes habeas unless Congress clearly excludes it. The panel’s view, as recounted, treats habeas’s civil classification as sufficient to satisfy the EAJA’s waiver language.

B. Judge Bove’s core critique: “civil action” is a term of art tied to the Civil Rules; habeas is “civil in nature” but not a “civil action”

Judge Bove contends the panel’s unambiguity conclusion is incompatible with sovereign-immunity doctrine: the existence of multiple reasonable readings means the Government wins. Invoking Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin and United States v. Miller, he argues that (1) habeas has repeatedly been called “hybrid,” (2) the Third Circuit itself has distinguished habeas from “ordinary civil cases” (United States v. Bendolph), and (3) Supreme Court and circuit cases interpreting “civil action” in other statutes exclude habeas (Schlanger v. Seamans; Santana v. United States).

His alternative reading is structural: “civil action” in EAJA should be read consistently with “civil action” in the Federal Rules of Civil Procedure (Rule 2/Rule 3’s complaint-based, single-form action), which he says Congress effectively transplanted into Title 28 during codification—making habeas (commenced by “application”/“petition,” governed by Habeas Rules and distinct statutes) outside the waiver.

C. Judge Bove’s additional critique: even if EAJA reaches habeas, fees should fail on “substantial justification” and “special circumstances”

Judge Bove argues that applying the fact-intensive German Santos balancing test to detention cases makes genuine disagreement predictable, and fee awards should be “rare.” In Abioye’s case, he emphasizes aggravating facts (large-scale fraud, visa overstay, alleged marriage fraud, incomplete supervised release, restitution/forfeiture orders) as making the Government’s detention stance reasonable, and further as creating “special circumstances” making a fee award “unjust.”

D. Judge Mascott’s emphasis: the circuit split itself defeats “clarity,” and fees create strong incentives to prolong detention litigation

Judge Mascott highlights three points. First, under the clear-statement rule of Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, a deep split between Barco v. Witte/Obando-Segura v. Garland and Daley v. Ceja/Vacchio v. Ashcroft/In re Hill suggests the statute is not unambiguous. Second, he warns about systemic incentives and cites district court decisions encouraging fee petitions (e.g., Cova v. Rose; Aguirre-Guevara v. Oddo, both cited in the dissent). Third, he characterizes the panel’s approach to “substantial justification” as a “backdoor” expansion of circumstances in which detention defenses will be deemed unjustified, even where the detainee lacks lawful status and is under final removal orders.

3.3. Impact: What the Denial of Rehearing Means Going Forward

• Binding Third Circuit rule: Because rehearing was denied, the panel’s holding—EAJA fees are available in immigration-detention habeas petitions as “any civil action”—operates as controlling law within the Third Circuit unless superseded by the Supreme Court or later en banc action.
• Forum and litigation incentives: The dissents anticipate increased fee litigation and increased habeas filings (especially in prolonged-detention contexts) because EAJA shifts costs from detainees (and pro bono counsel) to the Government.
• Pressure on the “substantial justification” analysis: The panel’s treatment (as described) may encourage arguments that detention positions are presumptively unjustified after certain timeframes under the German Santos factors, potentially raising the Government’s fee exposure even when it loses only close, fact-driven balances.
• Acceleration toward Supreme Court review: The split—Fourth and Fifth Circuits versus Second, Ninth, Tenth, and now Third—creates a classic vehicle for nationwide resolution, especially given the sovereign-immunity clear-statement stakes and recurring immigration-detention habeas litigation.

4. Complex Concepts Simplified

• Sovereign immunity: The default rule that the federal government cannot be made to pay money (including attorneys’ fees) unless Congress clearly says it can.
• EAJA (28 U.S.C. § 2412(d)(1)(A)): A statute that can require the Government to pay a prevailing party’s attorneys’ fees in covered matters, unless the Government’s position was “substantially justified” or “special circumstances make an award unjust.”
• “Any civil action”: The disputed waiver phrase. The panel (as described) treated habeas as civil and therefore included. The dissents argue “civil action” is a narrower term of art, closely linked to the Federal Rules of Civil Procedure, and habeas is procedurally distinct (“hybrid”).
• Habeas corpus under 28 U.S.C. § 2241: A mechanism to challenge unlawful custody (here, immigration detention). It resembles civil litigation in some ways but is governed by specialized rules and statutes.
• “Substantially justified”: The Government avoids fees if its position had a reasonable basis in law and fact—even if it lost.
• “Special circumstances”: A safety valve allowing courts to deny fees when equity would make fee-shifting unfair (for example, in some cases involving novel issues or a prevailing party’s inequitable conduct).

5. Conclusion

The Third Circuit’s denial of rehearing leaves in place a consequential precedent: within the circuit, immigration-detention habeas petitions may qualify as “any civil action” under the EAJA, exposing the federal government to attorneys’ fee awards when detainees prevail and the Government cannot show “substantial justification” or “special circumstances.”

The dissents frame the decision as (1) inconsistent with the stringent sovereign-immunity clear-statement rule emphasized in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, (2) in tension with habeas’s “hybrid” status recognized in United States v. Bendolph and related authorities, and (3) likely to alter incentives and expand fee exposure in fact-intensive prolonged-detention litigation guided by German Santos v. Warden Pike County Correctional Facility. Whether the Supreme Court will resolve the entrenched split identified by the dissenters is now the central question for the doctrine’s national uniformity.