[00:00:15] Speaker 01:
The next case this morning is Daly versus Choate, 24-1191.

[00:00:23] Speaker 01:
Counsel for appellant, if you'd make your appearance and proceed, please.

[00:00:36] Speaker 04:
Good morning, Your Honors.

[00:00:38] Speaker 04:
May it please the Court, I am Kyle Brenton on behalf of the respondents.

[00:00:44] Speaker 04:
This court can only affirm the district court if it concludes that the phrase civil action in the Equal Access to Justice Act unmistakably and unambiguously encompasses habeas petitions challenging immigration detention.

[00:01:01] Speaker 04:
If there is any ambiguity, the court must apply the sovereign immunity clear statement rule and hold with the fourth and fifth circuits that sovereign immunity has not been waived.

[00:01:13] Speaker 04:
Now the analysis here proceeds in three steps.

[00:01:16] Speaker 04:
Step one, the term civil action in the EJA is ambiguous as to immigration habeas petitions.

[00:01:24] Speaker 04:
Step two, the traditional tools of statutory interpretation that Daly relies on to try to resolve that ambiguity, in fact do not resolve the ambiguity conclusively.

[00:01:36] Speaker 04:
And because step three, civil action can plausibly be read to exclude

[00:01:43] Speaker 04:
All habeas, including habeas challenging immigration, the court should apply the clear statement rule here to hold that sovereign immunity bars an award of fees.

[00:01:55] Speaker 04:
So turning to the first step of that analysis.

[00:01:59] Speaker 04:
The term civil action is ambiguous.

[00:02:01] Speaker 04:
How do we know?

[00:02:02] Speaker 04:
Well, first, Congress chose not to define the term civil action.

[00:02:07] Speaker 04:
Now, obviously, not every undefined statutory term is automatically ambiguous.

[00:02:13] Speaker 04:
but where a broad statutory term like civil action meets a very specific and unique context like habeas, ambiguity can arise, and it does so here.

[00:02:27] Speaker 01:
And looking at the dictionaries, both contemporary and current, they almost universally, do they not, draw a distinction between civil means not criminal?

[00:02:40] Speaker 04:
That is,

[00:02:41] Speaker 04:
a very common way of defining the term, Your Honor, yes.

[00:02:45] Speaker 01:
It certainly is.

[00:02:45] Speaker 01:
And habeas proceedings are not criminal, right?

[00:02:49] Speaker 04:
I think that the Supreme Court cases, the literature supports our position here that habeas cases are unique.

[00:02:56] Speaker 04:
They are not criminal.

[00:02:57] Speaker 04:
They're not an extension of the criminal prosecution.

[00:03:00] Speaker 04:
But I think that when those types of lines are drawn in the law, it is crucially important to look to the context of how and when that line is being drawn and why.

[00:03:11] Speaker 04:
I'll point the court to its cases interpreting the PLRA and about whether the use of the term civil action in that statute encompassed habeas.

[00:03:20] Speaker 04:
That's McIntosh, which we cited in our briefs, also Simmons, the case that preceded McIntosh.

[00:03:26] Speaker 04:
And the analysis that I'm proposing here is exactly the analysis that the court engaged in in those cases.

[00:03:32] Speaker 04:
The term is undefined and habeas is a unique creature in American law.

[00:03:39] Speaker 04:
and therefore it is ambiguous whether habeas is encompassed within the term civil action.

[00:03:45] Speaker 04:
Now, looking to the Supreme Court case law, obviously the court frequently describes habeas in a general way as civil or as a civil proceeding.

[00:03:57] Speaker 04:
It's pretty rare for the court to use the phrase civil action when describing habeas, and in fact, the parties here have cited only one case

[00:04:07] Speaker 04:
where the Supreme Court was interpreting a statutory phrase, civil action, to determine whether habeas was that.

[00:04:15] Speaker 04:
And that was the Schlanger case in which the court was interpreting civil action in the Mandamus and Venue Act, Section 1391E, and said that habeas was not a civil action for the purposes of that.

[00:04:29] Speaker 04:
That was drawing on the decision from Harris saying that habeas is unique and it defies classification.

[00:04:36] Speaker 04:
and then it was reaffirmed in the decision in Stafford where the court said that it had rejected a broad reading of the term, statutory term, civil action that would have encompassed habeas.

[00:04:47] Speaker 04:
So combining those three cases and looking at the context here as the term is used in EJA, ambiguity arises.

[00:04:55] Speaker 01:
And if we accept the premise that context matters, as you've indicated and as I think interpretive principles suggest, isn't the context

[00:05:05] Speaker 01:
that we're talking about a habeas proceeding relative to immigration detention as opposed to criminal detention in Ewing, doesn't that context matter?

[00:05:15] Speaker 04:
Your Honor, I think context certainly matters.

[00:05:18] Speaker 04:
I don't believe that that distinction makes a dispositive difference in this case, because in my view, the outcome here should be the same as the outcome in Ewing.

[00:05:29] Speaker 04:
Even Ewing acknowledges in a footnote that it may not be the same, right?

[00:05:33] Speaker 04:
Well, let's talk about that footnote, your honor.

[00:05:35] Speaker 04:
The footnote in Ewing where the court distinguishes Hill.

[00:05:39] Speaker 04:
And I think it's really important for this discussion that we get into exactly why the Ewing court was distinguishing Hill.

[00:05:48] Speaker 04:
The Ewing court analysis is essentially a statutory purpose analysis.

[00:05:54] Speaker 04:
Ultimately, after concluding that the term civil action was ambiguous as to habeas, the court then turned to statutory purpose.

[00:06:01] Speaker 04:
And the purposes that the Ewing Court found... It looked at legislative history too, right?

[00:06:08] Speaker 04:
That's what you acknowledged in your own brief.

[00:06:10] Speaker 04:
Absolutely.

[00:06:11] Speaker 04:
So I will say, Your Honor, when we're talking about statutory purpose in sovereign immunity, the court has to be careful because oftentimes statutory purpose is drawn from legislative history.

[00:06:21] Speaker 04:
That's what the Ewing Court did.

[00:06:23] Speaker 04:
But I will say, as we point out in our reply brief,

[00:06:26] Speaker 04:
When Congress passed the IJA, it included a statement of purpose in the public law.

[00:06:31] Speaker 04:
We cite to that in our reply brief.

[00:06:33] Speaker 04:
And that statement of purpose that Congress actually said, here is the purpose of the statute, is entirely consistent with what Ewing found from the legislative history.

[00:06:42] Speaker 04:
And that purpose was to remove economic deterrence to challenging unreasonable government's action.

[00:06:50] Speaker 04:
Now there's a lot, in this body of case law, there are a lot of more broad statements of purpose, not in Ewing, but in, for example, Boudin, saying things like, well, the purpose of IJA is to make better policy, to deter the government from acting unreasonably.

[00:07:05] Speaker 04:
Those purposes are not stated in the statute.

[00:07:09] Speaker 04:
But the economic anti-deterrent purpose is, and that is what Ewing was all about in its statutory purpose analysis.

[00:07:16] Speaker 04:
It said, all right, so,

[00:07:19] Speaker 04:
individuals who are in criminal confinement and they're filing habeas, essentially, are they economically deterred from filing?

[00:07:26] Speaker 04:
And the court said no, because they're eligible for appointed counsel under the Criminal Justice Act.

[00:07:31] Speaker 04:
And they have what the court called a custodial incentive.

[00:07:35] Speaker 04:
And what I think that means, and it's really the crux of the difference between Hill and this case and Ewing, is that what Congress was trying to fix with the EJA,

[00:07:47] Speaker 04:
was the situation where an individual may have a claim, but it is more expensive to pursue that claim than the claim is worth, essentially.

[00:07:58] Speaker 04:
That is the kind of economic deterrent that Congress was trying to undo with the IJA, and that's all.

[00:08:04] Speaker 04:
It's a narrow purpose.

[00:08:06] Speaker 04:
In Ewing, the court recognized that

[00:08:10] Speaker 04:
the petitioner in Hill was in an entirely different position.

[00:08:14] Speaker 01:
He was in an entirely different position because he was in a civil proceeding, right?

[00:08:20] Speaker 04:
That's not the distinction that Ewing draws, your honor.

[00:08:22] Speaker 01:
That's not the language that the court uses, but the bottom line is, footnote five acknowledges that these contexts are not the same.

[00:08:33] Speaker 01:
And that was where I started with this conversation, that we are in a different context, are we not, than Ewing?

[00:08:39] Speaker 04:
I agree, Your Honor, that the footnote five says the context is different, but I really think, I think we may disagree about what that difference is.

[00:08:48] Speaker 04:
And I think for the Ewing Court, what was important about that difference was that the petitioner in Hill was a free person living in another country.

[00:08:56] Speaker 04:
They were not detained.

[00:08:58] Speaker 04:
He was essentially trying to challenge a public policy decision that had been made to deny homosexual individuals visas.

[00:09:09] Speaker 04:
And that those circumstances, so he was not detained, so he was not eligible for counsel, and he had no custodial incentive, it was really a matter of dollars and cents, he could have gone to visit another country.

[00:09:22] Speaker 04:
And that really means that that anti-deterrent purpose of IJA was very much active in Hill, whereas it was not in Ewing.

[00:09:31] Speaker 04:
So I think that that is the distinction that footnote five in Ewing is drawing.

[00:09:35] Speaker 04:
between situations where there is an economic deterrent to filing and situations where there is not.

[00:09:41] Speaker 04:
Now, in this case, Ms.

[00:09:44] Speaker 04:
Daley is detained.

[00:09:45] Speaker 04:
So she has the same custodial incentive as the petitioner in Ewing.

[00:09:51] Speaker 04:
We talk in our brief about eligibility under the Criminal Justice Act for appointment in counsel.

[00:09:56] Speaker 02:
Yeah, but isn't the reason why she's in custody relevant?

[00:09:59] Speaker 02:
And that's what I think we're getting at here with context.

[00:10:02] Speaker 02:
If someone is in custody pursuant to a criminal proceedings, that means they have a sentence.

[00:10:07] Speaker 02:
That means it's been said by a court, you will serve this amount of time in custody compared with someone as here, Ms.

[00:10:14] Speaker 02:
Daly in immigration, wherein she's in detention until her proceedings expire.

[00:10:20] Speaker 02:
And as the government conceded, she wasn't afforded any process, so she was unlawfully detained.

[00:10:26] Speaker 02:
So why isn't that an important factor when we consider the context?

[00:10:29] Speaker 04:
Well, Your Honor, I'll just take issue with the notion that the government conceded that she was unlawfully detained.

[00:10:35] Speaker 04:
Obviously, the district court held against us on the merits.

[00:10:38] Speaker 04:
It held against us on substantial justification.

[00:10:40] Speaker 04:
We haven't appealed those points.

[00:10:41] Speaker 04:
We certainly don't concede them.

[00:10:43] Speaker 04:
But I would say, Your Honor, that the distinctions that you've just drawn are certainly relevant to the merits of her habeas claim, but I don't believe they're relevant to whether

[00:10:54] Speaker 04:
habeas claims, habeas petitions challenging immigration detention are civil actions for the purposes of the EJA.

[00:11:01] Speaker 04:
I think those are two different questions.

[00:11:03] Speaker 04:
And I think that, you know, habeas claim can address... You're saying the reason why someone's in detention has no relevance at all.

[00:11:11] Speaker 04:
I think it does not have relevance to whether it's a civil action.

[00:11:14] Speaker 04:
No, Your Honor.

[00:11:15] Speaker 04:
Okay.

[00:11:15] Speaker 02:
I think that's... Can I ask you about the statutory language though, as we've examined purpose?

[00:11:20] Speaker 02:
What do we do with the language in the statute that comes right after the word action?

[00:11:24] Speaker 02:
In the parenthetical, it says, other than cases surrounding and tort.

[00:11:28] Speaker 02:
It seems, at least arguably, that Congress is specifically saying, traditional civil actions, we're going to carve these out.

[00:11:36] Speaker 02:
But they don't include habeas.

[00:11:38] Speaker 02:
And as the briefs point out, for well over 100 years, the Supreme Court had been calling habeas actions civil.

[00:11:46] Speaker 02:
So if Congress, aware of all that precedent, doesn't include that habeas action in the statute, isn't that significant?

[00:11:53] Speaker 04:
Well, I think, Your Honor, that language, the tort exclusion, only comes into play once the court or once a decision maker has determined that the underlying case is a civil action.

[00:12:07] Speaker 04:
And the issue here, the issue that we raise, is that habeas isn't a civil action to begin with.

[00:12:13] Speaker 04:
So it doesn't matter, so the question here essentially is not,

[00:12:17] Speaker 04:
Is the civil action at issue in this case one of the ones that EJ is supposed to apply to?

[00:12:21] Speaker 04:
If that's the question, and that was very similar to the question in Nelson, but if that's the question, then sure, any and other than cases sounding in tort, they're going to do a lot of work to answer that question.

[00:12:32] Speaker 04:
But here we're talking about the antecedent question, which is, is habeas a civil action at all?

[00:12:37] Speaker 04:
And I think, Your Honor, I mean, as we show, we've got three very strong Supreme Court cases in the decade preceding the enactment of IJA saying that habeas is not always civil, and specifically not a civil action for some statutory purposes.

[00:12:52] Speaker 04:
I mean, we've just got some bedrock facts.

[00:12:54] Speaker 04:
We don't talk about habeas, an action for habeas, like its trespass or breach of contract.

[00:13:01] Speaker 04:
We talk about a writ, an application for a writ of habeas corpus,

[00:13:05] Speaker 04:
That's what Section 2241 says.

[00:13:08] Speaker 04:
In the language of Section 2241, it doesn't use the phrase civil action at all.

[00:13:13] Speaker 04:
When you look at Federal Rule of Civil Procedure 81, we're talking about civil actions and proceedings, and these are the proceedings where the rules apply, and here's how.

[00:13:23] Speaker 04:
So I think the things listed in Rule 81 are debatably not civil actions.

[00:13:27] Speaker 04:
And again, I think because sovereign immunity is at issue here,

[00:13:30] Speaker 04:
All we need is a plausible reading of the statute whereby habeas, this petition is not encompassed.

[00:13:37] Speaker 01:
If you're invoking sovereign immunity, the interpretive canon, that principle of sovereign immunity, that comes into play after you've exploited traditional tools of statutory interpretation, including looking at the plain language.

[00:13:51] Speaker 01:
So for the moment, why should I care about sovereign immunity?

[00:13:54] Speaker 01:
That is not the relevant inquiry to begin with.

[00:13:57] Speaker 01:
Is it not?

[00:13:59] Speaker 04:
Well, I think, I mean, Your Honor is correct that the Court has pointed out that the ambiguity that we're looking for, we're looking to see whether there's ambiguity, and we do apply the traditional tools of statutory interpretation, excepting legislative history, which I think has been firmly ruled out.

[00:14:15] Speaker 04:
But ultimately, the question before the Court is, is there a plausible reading of this language that excludes these types of petitions from the scope of the term civil action?

[00:14:25] Speaker 01:
That question goes to the question of whether

[00:14:28] Speaker 01:
we have not come up with a whether the language itself does not give a reading that is clear.

[00:14:35] Speaker 01:
I mean the whole question of whether one would say okay there's an ambiguity and therefore we construe that narrowly to protect sovereign immunity

[00:14:44] Speaker 01:
We're not there yet.

[00:14:45] Speaker 01:
I mean, to begin with, we gotta decide whether there's an ambiguity.

[00:14:48] Speaker 01:
I mean, that may be what you perceive to be true, but that's not the beginning of the analysis, is it?

[00:14:55] Speaker 04:
Well, I agree with your honor completely, yes.

[00:14:57] Speaker 04:
There must be an ambiguity in the language before the sovereign immunity canon, before the clear statement rule comes into play.

[00:15:04] Speaker 04:
But I think that's exactly what, again, I'll point the court to the PLRA cases.

[00:15:08] Speaker 04:
This is exactly how the court proceeded there.

[00:15:10] Speaker 04:
Same statutory term, but in a different statute.

[00:15:13] Speaker 04:
being applied to habeas, which is, I think, what the Simmons case calls a strange and slippery creature.

[00:15:20] Speaker 04:
It is a unique category unto itself.

[00:15:23] Speaker 04:
It predates civil actions.

[00:15:25] Speaker 04:
It predates the federal rules.

[00:15:26] Speaker 04:
It predates pretty much all of American law and has always been there as a separate and distinct type of action.

[00:15:35] Speaker 04:
I see I have one second left, Your Honor.

[00:15:36] Speaker 04:
I would like to reserve that for rebuttal if I could.

[00:15:39] Speaker 01:
Thank you.

[00:15:50] Speaker 03:
Good morning.

[00:15:51] Speaker 03:
Jack Hoover for the appellee and may it please the court.

[00:15:54] Speaker 03:
My client prevailed below in a civil habeas proceeding challenging civil detention arising from civil immigration proceedings.

[00:16:03] Speaker 03:
There are two main issues here that once clarified demonstrate why civil litigants like my client are entitled to their fees under EJA.

[00:16:11] Speaker 03:
First, habeas has so long and so broadly been considered a civil action

[00:16:16] Speaker 03:
that it is implausible that Congress meant to implicitly exclude civil immigration habeas from IJA.

[00:16:23] Speaker 03:
And when Congress uses the phrase any civil action in other statutes, that phrase has uniformly been interpreted to include habeas actions, and so the text is clear.

[00:16:34] Speaker 03:
And second, the government seeks an exceedingly narrow view of the sovereign immunity canon, and one the Supreme Court has explicitly rejected.

[00:16:43] Speaker 03:
Courts use all of their traditional tools of statutory interpretation to determine a waiver's scope.

[00:16:49] Speaker 03:
The court below got these issues right.

[00:16:50] Speaker 00:
Well, why do they separate out criminal habeas?

[00:16:55] Speaker 00:
Why isn't that a civil action also?

[00:16:59] Speaker 00:
We believe that criminal habeas is a civil action.

[00:17:01] Speaker 00:
It's never been so held.

[00:17:06] Speaker 03:
Courts have held that criminal habeas is not a civil action for the purpose of IJA, and I just want to state for the purpose of preservation that we think that that is wrong.

[00:17:16] Speaker 00:
Well, it may be wrong, but I mean, there are two very valid principles at stake here.

[00:17:26] Speaker 00:
And if immigration habeas is civil, then it should all be civil, right?

[00:17:34] Speaker 00:
That's, we agree with that.

[00:17:35] Speaker 03:
We believe that habeas is habeas, and so it should be treated as a civil action.

[00:17:40] Speaker 01:
And if you believe that, then why isn't Ewing controlling?

[00:17:43] Speaker 01:
Why isn't that the end of the game?

[00:17:45] Speaker 03:
So for the purposes of preservation, I just want to say that we think Ewing is incorrect.

[00:17:50] Speaker 03:
But this court does not need to overrule Ewing to rule for us today.

[00:17:55] Speaker 03:
The court there explicitly differentiated criminal actions from civil actions.

[00:18:01] Speaker 01:
Then you have lost me.

[00:18:03] Speaker 01:
I thought you just said, habeas is habeas, criminal habeas is civil.

[00:18:08] Speaker 01:
Well, Ewing didn't do that, did it?

[00:18:11] Speaker 03:
Right, Your Honor.

[00:18:12] Speaker 03:
So we're living in the world where Ewing is controlling here.

[00:18:15] Speaker 03:
And the court there does believe that there's a difference between criminal habeas and civil habeas.

[00:18:20] Speaker 01:
So is that the world you're living in?

[00:18:22] Speaker 01:
Was your colloquium with Judge Kelly some other world?

[00:18:26] Speaker 01:
Are you taking the position that all habeas is habeas and therefore criminal habeas is

[00:18:31] Speaker 01:
is civil to?

[00:18:32] Speaker 01:
What world are we in?

[00:18:34] Speaker 03:
That's a world that we would like that we're just preserving.

[00:18:37] Speaker 01:
Well, I don't want to hear aspirational now.

[00:18:39] Speaker 01:
Tell me what you're arguing now.

[00:18:42] Speaker 03:
Yes, Your Honor.

[00:18:43] Speaker 03:
And so we believe that the courts holding in Ewing is distinguishable because the court there was saying that criminal habeas is different.

[00:18:52] Speaker 03:
It's covered by the CJA.

[00:18:54] Speaker 03:
And footnote five makes that quite clear that the court believed that civil habeas was a different sort of action.

[00:19:04] Speaker 03:
And so the court there was inviting a future panel to take a different position on a purely civil immigration habeas case such as this one.

[00:19:14] Speaker 01:
Isn't the same custodial incentive present here as was present in Ewing?

[00:19:21] Speaker 03:
No, Your Honor, this custodial incentive is slightly different.

[00:19:25] Speaker 03:
My client could have been released at any time if she simply gave up her visa applications.

[00:19:30] Speaker 03:
And the government stated below that it was ready to remove her to Guatemala within 14 days.

[00:19:37] Speaker 03:
That's at page 116 in the record.

[00:19:40] Speaker 03:
And so she could have given up her challenge and given up her rights in the face of the agency action there, which places her exactly in the sort of litigant

[00:19:51] Speaker 03:
that Congress was thinking about when it passed EJA.

[00:19:54] Speaker 03:
Another key distinction between Ewing and this case is that the criminal defendant there was incarcerated pursuant to a criminal conviction, which already involved an Article III court.

[00:20:07] Speaker 03:
My client here was challenging agency action.

[00:20:09] Speaker 03:
There was no court involvement until her petition for habeas was filed.

[00:20:15] Speaker 03:
And so she's in a markedly different position from the petitioner in Ewing.

[00:20:21] Speaker 03:
I just want to focus for a moment on the text, Any Civil Action.

[00:20:24] Speaker 03:
The government tries to lop off the word any, but we think that the word any is meaningful here.

[00:20:30] Speaker 03:
And so we've listed in our briefing a number of places in the federal code where the word any civil action has been interpreted to include habeas, and in fact we have not found a single place in the code other than here where courts have interpreted any civil action to disclude habeas.

[00:20:48] Speaker 03:
And there's one key example that I wanted to highlight, and that's 28 U.S.C.

[00:20:53] Speaker 03:
1914.

[00:20:54] Speaker 03:
which sets the fees for filing civil actions.

[00:20:59] Speaker 03:
And so it says for any civil action, the filing fee is $350, except for habeas actions where the filing fee is $5.

[00:21:07] Speaker 03:
And so Congress is doing there what it could have done in IJA.

[00:21:14] Speaker 03:
Congress knows how to accept habeas from civil actions when it wants to, and it didn't do that here.

[00:21:20] Speaker 03:
And in fact, the government has no answer to one of the strongest pieces of evidence in the statute, which is that Congress expressly excluded tort actions.

[00:21:28] Speaker 01:
And as the opposing counsel said, that's getting the cart before the horse.

[00:21:32] Speaker 01:
The question is, what is a civil action?

[00:21:35] Speaker 01:
That is excluding certain civil actions.

[00:21:37] Speaker 01:
That presumes that habeas is a civil action in your argument, and that's what we're here to talk about.

[00:21:42] Speaker 01:
Is it not?

[00:21:43] Speaker 01:
What do you do with the PLRA cases, including McIntosh that the opposing counsel mentioned?

[00:21:49] Speaker 01:
What's your position on those?

[00:21:51] Speaker 03:
Those cases, we believe, reflect the Supreme Court's practice, which is uncontroversial, to harmonize the rules applying generally to civil actions with the habeas rules.

[00:22:03] Speaker 03:
And so that's what the court did in Browder, for example.

[00:22:06] Speaker 03:
which was a motion to reconsider and the question was do the general civil rules that apply to a motion to consider apply in habeas and the Supreme Court said habeas is a civil action and so we apply the federal rules by default and there's no conflict here between that federal rule and traditional habeas practice.

[00:22:26] Speaker 03:
And that's what the courts are doing in McIntosh and Schlanger is they are trying to see if there's a conflict between the civil rules and the general habeas practice.

[00:22:38] Speaker 00:
Well, what do you say about the financially inability as covered by the under Section 2241 that she could have gotten appointed counsel?

[00:22:55] Speaker 03:
The government takes this position in its reply for the very first time.

[00:23:00] Speaker 03:
We think that that issue is unclear at best.

[00:23:04] Speaker 03:
So the 11th Circuit has held in a case, it's Perez Perez v. Hanbury, that 2241 petitions for detained non-citizens do not fall within the text of the CJA.

[00:23:17] Speaker 03:
In addition, the government cites a number of cases.

[00:23:19] Speaker 01:
Is the Perez case somewhere in your brief or no?

[00:23:23] Speaker 03:
It is not, Your Honor.

[00:23:24] Speaker 01:
Would you please submit a 28J letter on that?

[00:23:27] Speaker 01:
Yes, Your Honor.

[00:23:27] Speaker 01:
Just so we have it as part of the record.

[00:23:29] Speaker 01:
Yes.

[00:23:30] Speaker 03:
And again, that was raised in the government's reply brief for the first time.

[00:23:34] Speaker 03:
It was not even discussed.

[00:23:35] Speaker 03:
No, I'm not casting false.

[00:23:37] Speaker 01:
I'm just saying if you'll do that, please.

[00:23:39] Speaker 03:
Yes, Your Honor.

[00:23:39] Speaker 03:
And I also wanted to point out that the cases the government cites for that proposition, there's the Saldinia case and Chamberlain case, the government actually opposed CJA appointment in those cases and appears to take a different position here.

[00:23:54] Speaker 00:
Council, can I ask you?

[00:23:54] Speaker 00:
Does that make it ambiguous?

[00:23:56] Speaker 00:
Sorry, Your Honor, I didn't hear.

[00:23:58] Speaker 00:
Does that make it ambiguous?

[00:24:01] Speaker 03:
I don't believe that that makes it ambiguous here.

[00:24:04] Speaker 03:
It doesn't make the text ambiguous for the waiver of sovereign immunity.

[00:24:10] Speaker 03:
It's sort of quite far down the line of analysis.

[00:24:14] Speaker 03:
And so the government is trying to use it to create ambiguity here when there's just too much uncertainty in that point to stand on.

[00:24:21] Speaker 02:
Council, I wanted to ask about

[00:24:24] Speaker 02:
the case law that talks about habeas being a sort of hybrid.

[00:24:28] Speaker 02:
The government calls your theory the two buckets theory.

[00:24:31] Speaker 02:
Why does it have to be civil or criminal?

[00:24:34] Speaker 02:
And it seemed to be some of the reasoning that was relied upon by the Fourth and the Fifth Circuits, which you know have gone against your position.

[00:24:41] Speaker 02:
But what do we do with that body of case law that seems to recognize that habeas, the great writ, is just a different animal than what

[00:24:50] Speaker 02:
is commonly construed as civil filings, including the procedures and all other ways in which the cases proceed in the normal course in a court.

[00:25:00] Speaker 02:
So what do we do with that body of case law?

[00:25:02] Speaker 03:
The case law does say for some purposes that habeas is a hybrid action, but they're talking about procedurally.

[00:25:08] Speaker 03:
They're saying procedurally sometimes different rules apply.

[00:25:12] Speaker 03:
And that's what those cases are really about is whether, for example,

[00:25:16] Speaker 03:
Rule 33 interrogatories apply to habeas.

[00:25:20] Speaker 03:
And of course they don't because the defendant is the custodian and they don't necessarily know why the petitioner is incarcerated.

[00:25:27] Speaker 03:
And so one of the amicus briefs actually put it nicely and said what the government's arguing is that a goalie is not a soccer player because they can use their hands.

[00:25:38] Speaker 03:
And so the hybrid nature there is really the application of the civil rules to habeas proceedings.

[00:25:46] Speaker 03:
And it's an uncontroversial statement to say that sometimes they just don't apply.

[00:25:50] Speaker 03:
But that doesn't mean that habeas is something other than a civil action.

[00:25:54] Speaker 03:
And the Supreme Court has never said that, that it's not a civil action.

[00:25:58] Speaker 02:
So we should look more to the nature of the right that's being invoked and sort of ignore the procedures?

[00:26:04] Speaker 03:
That's our position, is that because habeas is not a criminal action, that it is a civil action.

[00:26:09] Speaker 03:
There's further evidence of that.

[00:26:12] Speaker 03:
For example, when Congress enacted the Rules Enabling Act in 1934, it essentially instructed the judiciary to take all of these writs and bills in equity, all of them, and combine them into a civil action.

[00:26:25] Speaker 03:
And the Supreme Court did that a couple years later with Rule 2.

[00:26:29] Speaker 03:
And so it would be rather unusual for Congress to take a different position in IJA than it did in the Rules Enabling Act and believe that this one writ was excluded from the phrase civil action but not state that explicitly.

[00:26:46] Speaker 03:
I just want to touch briefly on the government's sovereign immunity argument because the government takes a strikingly narrow position on sovereign immunity

[00:26:57] Speaker 03:
The government essentially asked the court to strip away the word any, strip away the context in the statute, the purpose of the statute, and that's just not the analysis that the Supreme Court has undertaken in these sorts of cases.

[00:27:13] Speaker 03:
And the government is free to argue that to the Supreme Court if it wishes, but the court's recent opinions just do not follow that analysis.

[00:27:20] Speaker 03:
The ambiguity that we'd be looking for here is after the court applies all of its tools of

[00:27:26] Speaker 03:
statutory interpretation, and if there's ambiguity at the end of that analysis, that's where the canon would apply.

[00:27:34] Speaker 03:
And so we see that play out, for example, in Cooper, in Justice Alito's opinion, where the court does use all of its tools and tries to get to the bottom of the issue.

[00:27:45] Speaker 03:
Lots of analysis of the common law, even a little bit of legislative history that the court says is helpful but not binding.

[00:27:54] Speaker 03:
And it gets to the end of that analysis and says, we've done all of this work and we cannot choose one meaning or the other.

[00:28:00] Speaker 03:
And that's where the canon comes into play.

[00:28:03] Speaker 02:
Council, can I ask you though on ambiguity, haven't we already held in Sloan that civil action is used in IJA is ambiguous?

[00:28:12] Speaker 03:
I believe that Sloan's reasoning was taken almost entirely from Ewing.

[00:28:17] Speaker 02:
Yes, I agree with that.

[00:28:18] Speaker 03:
And so I would address the way Ewing discusses ambiguity and it does,

[00:28:23] Speaker 03:
say in the analysis that there is ambiguity there.

[00:28:25] Speaker 03:
But then Ewing does work to try and resolve that ambiguity.

[00:28:30] Speaker 02:
And the government- But don't we have to do that same work because Ewing and Sloan are published opinions of this court?

[00:28:35] Speaker 03:
I think so, but the ambiguity can be resolved first by analysis of the plain text in comparison to other cases where any civil action has been interpreted.

[00:28:45] Speaker 03:
It can be interpreted based on the structure of the statute

[00:28:48] Speaker 03:
the purposes of IJA, which many courts have discussed.

[00:28:52] Speaker 03:
And when you get to the end of that analysis, there's essentially an avalanche of tools that fall in our favor.

[00:28:59] Speaker 01:
And we're still stuck with trying to distinguish Ewing, right?

[00:29:06] Speaker 01:
I think Ewing- This world, not the aspirational world.

[00:29:10] Speaker 01:
Right, Your Honor.

[00:29:10] Speaker 01:
We have to do that, right?

[00:29:12] Speaker 03:
Ewing distinguishes itself.

[00:29:14] Speaker 03:
It limits itself to criminal actions.

[00:29:17] Speaker 01:
And so the position presumably would be that since Sloan flows from Ewing, Sloan's doing the same thing, right?

[00:29:25] Speaker 03:
Right.

[00:29:27] Speaker 03:
I read Sloan to just be taking the analysis from Ewing and making the same holding.

[00:29:33] Speaker 03:
But Ewing explicitly says that it's limited to criminal actions, and I view footnote five as inviting a future panel to potentially take a different view of civil actions in other contexts, and especially in the immigration context.

[00:29:53] Speaker 03:
But if there are no further questions, thank you, we ask this court to affirm.

[00:30:01] Speaker 01:
Thank you, case is submitted.

[00:30:03] Speaker 01:
You had four seconds.

[00:30:07] Speaker 01:
You can try to take your, oh, you were over four?

[00:30:10] Speaker 01:
Okay, sorry.

[00:30:12] Speaker 01:
Then case is submitted and as I noted before, we will have one more case and then we will be in a short recess.

[00:30:20] Speaker 01:
Thank you, counsel, for your very fine argument.

[00:30:30] Speaker 00:
That's where the crowd went.