Key Points

  • Third Circuit denied en banc rehearing of a panel ruling that EAJA's 'any civil action' language waives sovereign immunity for attorney fees in alien habeas detention challenges
  • Five judges dissented across two opinions; the lead dissent, joined by three others, argues the ruling conflicts with circuit precedent (Bendolph) and misapplies the old-soil interpretive principle
  • The circuit now sides with the Second, Ninth, and Tenth Circuits against the Fourth and Fifth Circuits, deepening an existing split over whether habeas is a 'civil action' under the fee statute
  • Dissents also challenged an $18,224.58 fee award to a petitioner with a $4.6 million fraud conviction, arguing the government's detention position was substantially justified and special circumstances barred recovery

The Court of Appeals for the Third Circuit has denied rehearing en banc in a pair of consolidated cases testing whether habeas petitions filed by detained aliens qualify as 'civil actions' under the Equal Access to Justice Act, leaving intact a panel decision that allows attorney-fee awards against the government in such proceedings.

The order, dated March 2, 2026, in Adolph Michelin v. Warden Moshannon Valley Correctional Center, records that a majority of active judges did not vote to rehear the case, with Judges Matey, Porter, Phipps, Bove, and Mascott voting to grant rehearing. Judge Bove, joined by Judges Matey, Porter, and Phipps, filed one dissent from the denial; Judge Mascott filed a separate dissent.

The lead dissent frames the case as turning on a narrow but consequential statutory question: whether the phrase 'any civil action' in 28 U.S.C. § 2412(d)(1)(A) unambiguously covers § 2241 habeas petitions brought by aliens contesting detention. The panel had held that it does, aligning the circuit with the Second, Ninth, and Tenth Circuits, while the Fourth and Fifth Circuits have gone the other way.

The panel's decision, the dissent states, 'requires taxpayers to help fund aliens’ efforts to prolong their stay in this Country despite orders of removal.'

The dissent argues that sovereign immunity waivers must be clear and unambiguous, and that the panel's reliance on the historical, common-law treatment of habeas—rather than the meaning of 'civil action' under the Federal Rules of Civil Procedure and the 1948 codification of Title 28—misapplied the interpretive principle under which a transplanted statutory term is presumed to carry its old meaning. The dissent contends that Congress borrowed 'civil action' from Civil Rule 2, not from Blackstone, and that habeas proceedings differ from ordinary civil actions in commencement, pleadings, discovery, and dispositive motion practice under the Habeas Rules.

The dissent also points to what it calls 'significant tension' with the circuit's own en banc precedent in United States v. Bendolph, which rejected treating habeas and ordinary civil cases as indistinguishable, as well as circuit case law construing 'civil action' in neighboring statutes to exclude habeas.

Beyond the sovereign-immunity question, the lead dissent separately argued that the fee award to one of the two petitioners, Adewumi Abioye, should have been reversed because the government's opposition to his detention challenge was 'substantially justified' and because 'special circumstances' made the award unjust. Abioye was convicted of a wire-fraud scheme causing $4.6 million in losses to more than ten victims, personally obtained $1.5 million in proceeds, and was ordered to pay $1,335,923.77 in restitution and $1 million in forfeiture; a magistrate judge nonetheless ordered the government to pay him $18,224.58 in fees.

'It is plainly inequitable to allow [petitioner] to flout American law in this fashion and then to require the public fisc to support his legal bills to terminate his detention.'

The separate dissent stressed practical consequences, noting that within weeks of the panel opinion, at least two district judges within the circuit had already pointed detainees toward fee applications, and warned that the ruling effectively expands the circumstances in which the government's detention position will be found not 'substantially justified,' since the key precedent on that issue involved a lawful permanent resident rather than aliens under final removal orders.

With rehearing denied, the panel's holding remains binding circuit law, positioning the Third Circuit against the Fourth and Fifth Circuits and alongside the Second, Ninth, and Tenth on the scope of the EAJA's fee-shifting waiver in immigration habeas litigation. The dissents make clear that several judges view the question as ripe for Supreme Court resolution given the acknowledged circuit split.