Background
The appellants, including Adolph Michelin and Adewumi Abioye, sought attorney fees under the Equal Access to Justice Act following habeas petitions challenging their detention. The panel held that the term any civil action in the statute unambiguously included habeas petitions, thereby waiving sovereign immunity. The appellants subsequently filed petitions for rehearing by the panel and the court en banc.
The court’s reasoning
The court denied the petitions for rehearing because no judge who concurred in the decision requested rehearing and a majority of the judges in regular active service did not vote for rehearing.
The dissent
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.
Bove
What it means going forward
The denial of rehearing en banc leaves the panel’s decision in place, allowing attorney fee awards under the Equal Access to Justice Act for aliens in habeas proceedings within the Third Circuit.