It’s easy to get disheartened watching the Trump administration losing these habeas cases and yet nothing actually changing. The government seems content to take its lumps at the margins while continuing to tear ass around the country. For Homeland Security, it’s a numbers game, and instilling a culture of permanent fear is worth a judicial scolding every couple days.
But this strategy might get expensive if the Third Circuit’s view takes hold. Because according to an appellate decision earlier today, the Equal Access to Justice Act would cover successful habeas petitions, giving the victims of ICE’s harassment access to fees and costs.
Transform Legal Reasoning Into Business-Ready Results With General AI
Protégé™ General AI is fundamentally changing how legal professionals use AI in their everyday practice.
The case, Michelin v. Warden Moshannon Valley Correctional Center, consolidated two appeals involving immigrants detained for extended periods — one for over a year and the other for over 16 months — without bond hearings. Both won their habeas petitions and sought attorney’s fees under the Equal Access to Justice Act. The government, in a move that should surprise absolutely no one, decided to fight that too.
The government argued that habeas corpus isn’t really a “civil action” under the EAJA because it’s some kind of “hybrid” proceeding. This went about as well as you’d expect when the court is sitting on literal centuries of established law.
“A petition for a writ of habeas corpus has been a civil action since before our law was our law,” begins the opinion. Even if the court were to indulge the government’s argument as it applies to releasing people from criminal detention, “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.”
A hybrid of a civil action and a civil action is a civil action.
The opinion systematically dismantled the government’s attempts to read exceptions into the statute’s plain language. The EAJA covers “any civil action (other than cases sounding in tort).” The court took the revolutionary stance that “any” means… “any.” Congress knew how to exclude categories when it wanted to because it explicitly carved out torts. If Congress had wanted to exclude habeas, it could have said so.
That’s the sort of ruling that should make immigration enforcement officials think twice before opposing habeas petitions in cases where they’ve locked someone up for over a year without so much as a bond hearing. It won’t, because they’ll just move even more quickly to whisk people away to the Fifth Circuit where that body’s deep respect for “textualism” has already decided that “any” means Congress probably had a secret list of exceptions that only the Fifth Circuit can divine.
But it definitely, probably included not applying to immigrants they reckon.
Though a win is still a win. The financial stakes aren’t huge — Tom Homan could theoretically fit several in a single Cava bag — but the thing about the government playing a numbers game is that volume adds up fast. Every successful immigration detainee in the Third Circuit forcing the government to pony up fees costs the government both money and time.
And with a circuit split, the Supreme Court faces pressure to resolve the matter, something the Third Circuit opinion takes into account, concluding with a direct challenge to the justices:
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.
Will this shame the Supreme Court into respecting its own recent history, or will the majority embrace hypocrisy?
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.