O'Brien v. Moore ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSEPH P. O’BRIEN, 
Petitioner-Appellee,
and
JAMES E. BYRD; EBONY GUINN;
JARON A. STURDIVANT,
Petitioners,  No. 04-6473
v.
G. O. MOORE, Community
Corrections Manager,
Respondent-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CA-03-26-3-MU)
Argued: December 1, 2004
Decided: January 27, 2005
Before NIEMEYER and MICHAEL, Circuit Judges,
and Norman K. MOON, United States District Judge
for the Western District of Virginia,
sitting by designation.
Reversed and vacated by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Michael and Judge Moon joined.
2 O’BRIEN v. MOORE
COUNSEL
ARGUED: Matthew Theodore Martens, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Char-
lotte, North Carolina, for Appellant. William Chester Bunting, Jr.,
SHUMAKER, LOOP & KENDRICK, Charlotte, North Carolina, for
Appellee. ON BRIEF: Gretchen C. F. Shappert, United States Attor-
ney, Charlotte, North Carolina, for Appellant. Peter C. Anderson,
SHUMAKER, LOOP & KENDRICK, L.L.P., Charlotte, North Caro-
lina, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
The question in this appeal is whether the Equal Access to Justice
Act (the "EAJA"), 28 U.S.C. § 2412, contains an unequivocal expres-
sion of congressional intent to waive sovereign immunity to authorize
the assessment of an award of attorneys fees against the United States
in a habeas corpus proceeding.
The EAJA provides that a court shall award reasonable attorneys
fees to a prevailing party (other than the United States) "in any civil
action (other than cases sounding in tort), including proceedings for
judicial review or agency action, brought by or against the United
States . . . unless the court finds that the position of the United States
was substantially justified." 28 U.S.C. § 2412(d)(1)(A) (emphasis
added). Applying this provision, the district court entered an order
awarding Joseph P. O’Brien $35,935 in attorneys fees incurred in
connection with his successful prosecution of a petition for a writ of
habeas corpus, which he filed against the Federal Bureau of Prisons
under 28 U.S.C. § 2241.
Appealing the district court’s order, the government contends that
Congress did not waive sovereign immunity as to such an award
because, in waiving sovereign immunity as to an award of attorneys
fees to a prevailing party in a "civil action," Congress did not
unequivocally express an intent to waive sovereign immunity as to an
O’BRIEN v. MOORE 3
award of attorneys fees to a prevailing party in a habeas corpus pro-
ceeding. The government also contends that its position in this habeas
corpus proceeding was "substantially justified."
Because the EAJA does not expressly authorize an award of attor-
neys fees to a prevailing party in a habeas corpus proceeding and
because the term "civil action" does not unambiguously encompass
habeas actions, we conclude that the EAJA does not contain the
unequivocal expression of congressional intent necessary to amount
to a waiver of sovereign immunity and thereby permit the assessment
of attorneys fees against the United States in a habeas corpus proceed-
ing. Accordingly, we reverse and vacate the district court’s order
without reaching the government’s argument that its litigating posi-
tion was "substantially justified."
I
After Joseph O’Brien pleaded guilty to bank fraud in the Eastern
District of Pennsylvania, the district judge sentenced him, on Febru-
ary 13, 2002, to 24 months’ imprisonment and recommended that,
when he became eligible, O’Brien be designated to serve his sentence
at the McLeod Community Corrections Center, a halfway house in
Charlotte, North Carolina. Instead of sending O’Brien to prison, the
Federal Bureau of Prisons designated O’Brien to serve his entire sen-
tence at the McLeod Center.
On December 13, 2002, the Office of Legal Counsel of the United
States Department of Justice rendered a "Memorandum Opinion for
the Deputy Attorney General," which concluded that the Bureau of
Prisons’ practice of placing offenders sentenced to specified prison
sentences in halfway houses at the outset of their sentence or transfer-
ring them from prisons to halfway houses at any time the Bureau of
Prisons chose was unlawful under the U.S. Sentencing Guidelines and
under 18 U.S.C. §§ 3621 and 3622. The opinion applied to offenders
sentenced to terms of imprisonment within either Zone C of the Sen-
tencing Guidelines’ sentencing table (providing for 8 to 16 months’
imprisonment) or Zone D (providing for 12 months’ to life imprison-
ment).
Consistent with the Justice Department’s position, O’Brien was
notified on December 23, 2002, that he would be redesignated to
4 O’BRIEN v. MOORE
serve the remainder of his sentence in a federal prison. In January
2003, he was formally redesignated to a federal prison camp, to be
transferred there on or about January 27, 2003.
O’Brien and three other inmates commenced this habeas action on
January 21, 2003, by filing a "Joint Petition for a Writ of Habeas Cor-
pus under 28 U.S.C. § 2241 by Prisoners in Federal Custody." They
requested a temporary restraining order, pending a hearing on their
motion for a preliminary injunction, that they not be transferred from
the McLeod Center to a federal prison camp. Following oral argu-
ment, the district court issued a temporary restraining order on Janu-
ary 23, 2003, to expire on February 4, 2003. The court also scheduled
a hearing on that date on the motion for a preliminary injunction.
When O’Brien filed a motion before the scheduled hearing date to
postpone the hearing until February 14, 2003, the district court, over
the government’s objection, extended the temporary restraining order
until that date. The court also rescheduled the hearing on the motion
for a preliminary injunction to take place on that same date. Shortly
before the newly scheduled hearing date, when O’Brien had not yet
filed his memorandum of law in support of his motion for a prelimi-
nary injunction, the district court, sua sponte, extended the temporary
restraining order a second time, until March 5, 2003. In its order, the
court ruled that the ten-day limit imposed by Federal Rule of Civil
Procedure 65(b) did not apply because the temporary restraining order
"was entered with notice."
The government moved to dissolve the second extension of the
temporary restraining order, arguing that the district court was with-
out authority to extend the temporary restraining order beyond 20
days. In support of its position, the government cited three cases and
a passage from Wright & Miller’s Federal Practice and Procedure,
which states that "20 days . . . is the longest that a temporary restrain-
ing order can be operative." 11A Charles Alan Wright, Arthur R. Mil-
ler, & Mary Kay Kane, Federal Practice and Procedure § 2953 (2d
ed. 1995). In response to this motion, the court scheduled a hearing
on February 20, 2003, following which it entered an order dated
March 6, 2003, granting O’Brien’s "motion for stay" of any rede-
signation or transfer (which was made and orally granted at the Feb-
ruary 20 hearing) and his motion for a preliminary injunction.
O’BRIEN v. MOORE 5
During the February 20 hearing, the district court stated that it
thought the government had misrepresented the law when arguing
that there was a 20-day time limit for temporary restraining orders:
You’ve misrepresented the import of the cases to the Court.
You’ve overstated it and you’ve done so in a way that in a
civil case, if the other side moved for sanctions, I would
have to seriously consider it.
***
I think the case law is clear in the Fourth Circuit that only
a temporary restraining order issued for an indeterminate
period of time becomes willy-nilly a preliminary injunction.
The court then received argument from the parties on the merits of the
habeas petition.
On May 20, 2003, the government mooted O’Brien’s habeas peti-
tion and agreed that he would not be redesignated to a federal prison
camp, but would continue to serve the remainder of his sentence,
which was scheduled to expire in February 2004, at the McLeod Cen-
ter. The district court confirmed the government’s agreement in an
order dated June 30, 2003.
Having thus prevailed on his habeas petition, O’Brien moved the
district court for an award of attorneys fees and costs pursuant to the
EAJA, 28 U.S.C. § 2412, arguing that the government’s position in
the litigation was "not substantially justified." The government
opposed this motion, alleging that its position on the proper facility
in which to serve a sentence of imprisonment of over 12 months was
substantially justified, based on a series of successes in similar cases
in other federal courts. While the district court recognized the govern-
ment’s other successes, it concluded that they were merely one factor
that the court should consider in deciding whether to make an award
under the EAJA. Noting that it was also to consider the reasonable-
ness of the government’s "stance" in the litigation, the court referred
to the government’s position with respect to the viability of a tempo-
rary restraining order beyond 20 days, noting:
6 O’BRIEN v. MOORE
For instance, in the hearing for the preliminary injunction in
this matter, this Court considered imposing sanctions on [the
government] for [its] clearly erroneous representations of
the law.
The court concluded:
Therefore, in the totality of the circumstances, tak[ing] into
account objective indicia of substantial justification, such as
the alleged "string of successes" as well as the specific facts
of the instant litigation, the Court finds that the government
was not substantially justified in the position it took in this
specific case. Furthermore, and in the alternative, based on
the stances taken by respondents in the hearing, as well as
their pleadings to this Court, the Court finds that respondent
has undermined any substantial justification that might have
existed.
The court then awarded O’Brien attorneys fees, costs, and expenses
under the EAJA in the amount of $35,934.66.
The government filed a motion for reconsideration, raising for the
first time the issue of sovereign immunity and arguing that under the
EAJA the United States waived its sovereign immunity only with
respect to attorneys fees in "civil actions" and that a habeas corpus
proceeding was not a "civil action" for purposes of the EAJA. The
district court rejected the government’s argument, and, distinguishing
circuit court cases that had concluded that a habeas proceeding was
not a "civil action" for purposes of the EAJA, the court stated that
"Petitioner O’Brien’s ‘claim was not merely a vindication of his own
personal rights, but a challenge to a regulatory policy that had a
sweeping effect on’ a large class of actual and potential inmates"
(quoting In re Hill, 775 F.2d 1037, 1041 (9th Cir. 1985)). The court
continued, "Despite its name or label, the action in this case is pre-
cisely the type of civil action Congress sought to encourage by enact-
ing the EAJA." (Emphasis in original).
From the district court’s order, the government filed this appeal,
contending (1) that O’Brien’s habeas action was not a "civil action"
with respect to which the United States waived its sovereign immu-
O’BRIEN v. MOORE 7
nity through the EAJA, and (2) that the government’s position in this
litigation was, in any event, "substantially justified," precluding an
award of attorneys fees to O’Brien.
II
It is well-settled that "[a]ttorneys’ fees may be assessed against the
United States only when it has waived its sovereign immunity by stat-
ute." United States v. Dawkins, 629 F.2d 972, 975 (4th Cir. 1980)
(emphasis added); see also Ardestani v. INS, 502 U.S. 129, 137
(1991); 28 U.S.C. § 2412(a) (forbidding a fee award against the
United States except "as otherwise specifically provided by statute").
And such a waiver may not be implied. See Lehman v. Nakshian, 453
U.S. 156, 161 (1981). To the contrary, "sovereign immunity is pre-
sumed and cannot be overcome without an express and unequivocal
statutory waiver," and "all ambiguities [must be] resolved in favor of
the sovereign." Research Triangle Inst. v. Bd. of Governors of the
Fed. Reserve Sys., 132 F.3d 985, 987 (4th Cir. 1997) (citing Lane v.
Pena, 518 U.S. 187, 192 (1996)). Thus, "[t]o sustain a claim that the
Government is liable for awards of monetary damages, the waiver of
sovereign immunity must extend unambiguously to such monetary
claims." Lane, 518 U.S. at 192 (emphasis added).
Accordingly, in deciding whether, through the EAJA, Congress
waived the government’s sovereign immunity for an award of attor-
neys fees in habeas actions, "[o]ur task is to discern the ‘unequivo-
cally expressed’ intent of Congress, construing ambiguities in favor
of immunity." United States v. Williams, 514 U.S. 527, 531 (1995)
(quoting United States v. Nordic Village, Inc., 503 U.S. 30, 33
(1992)). More specifically, we must determine whether a statutory
waiver of sovereign immunity for awards of attorneys fees in "civil
actions" unambiguously covers habeas corpus proceedings.
O’Brien contends that the district court correctly determined that
his habeas corpus petition was a "civil action" for purposes of the
EAJA. Following the rationale of the district court, O’Brien notes that
the EAJA includes within the scope of the term "civil action" any
"proceedings for judicial review of agency action," 28 U.S.C.
§ 2412(d)(1)(A), and he argues that his habeas corpus petition was
such a proceeding to review agency action "regardless of the proce-
8 O’BRIEN v. MOORE
dural vehicle used to present the claim." Thus, O’Brien contends that
despite the fact that his action was styled as a petition for a writ of
habeas corpus, it was in fact directed at challenging the Bureau of
Prisons’ policy, and as such, it was a "civil action" for purposes of the
EAJA. For authority, O’Brien relies principally on language from the
Ninth Circuit’s opinion in In re Hill, which notes:
[W]e must look to the substance of the remedy sought, not
the labels attached to the claim, in determining whether a
proceeding falls within the term "any civil action" of the
EAJA. In contrast to the challenge of unlawful criminal cus-
tody in Boudin [v. Thomas, 732 F.2d 1107 (2d Cir. 1984)],
Hill sought to gain admission into this country and, in
essence, sought to secure a declaratory judgment that the
Government’s policy of excluding homosexual aliens with-
out a medical certificate was improper. Hill’s claim was not
merely a vindication of his own personal rights, but a chal-
lenge to a regulatory policy that had a sweeping effect on
homosexual aliens seeking to enter the United States.
775 F.2d at 1040-41.
At the outset, we point out that the EAJA does not provide a defini-
tion of the term "civil action," and its terms do not explicitly include
or exclude habeas corpus proceedings. O’Brien’s success, therefore,
depends on whether "civil action," as used in the EAJA, unequivo-
cally or unambiguously includes a habeas proceeding.
We begin by recognizing that courts have, for a long time, catego-
rized habeas cases as "civil" in nature. See, e.g., Hilton v. Braunskill,
481 U.S. 770, 776 (1987); Ex parte Tom Tong, 108 U.S. 556, 559-60
(1883). While such a categorization might have been for the conve-
nience of choosing between the criminal and civil labels, see, e.g.,
Fisher v. Baker, 203 U.S. 174, 181 (1906) (noting that a habeas pro-
ceeding "is a civil, and not a criminal, proceeding"); Tom Tong, 108
U.S. at 559-60 (noting that "[p]roceedings to enforce civil rights are
civil proceedings, and proceedings for the punishment of crimes are
criminal proceedings"); Boudin v. Thomas, 732 F.2d 1107, 1112 (2d
Cir. 1984) (same), such a gross classification could also be justified
by the fact that habeas proceedings employ to some degree the Fed-
O’BRIEN v. MOORE 9
eral Rules of Civil Procedure, see Fed. R. Civ. P. 81(a)(2). But any
such classification involving only two categories — civil and criminal
— has always been an uncomfortable one, and there can be no doubt
that labeling habeas as either civil or criminal is "gross and inexact."
Harris v. Nelson, 394 U.S. 286, 293-94 (1969).
The appropriate classification of habeas actions becomes even
more ambiguous when habeas’ characteristics are closely reviewed
against the characteristics of, and distinctions between, civil and crim-
inal actions, which are themselves not clear. See Browning-Ferris
Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 264-68
(1989). When examining the differences between civil and criminal
actions for purposes of applying the Excessive Fines Clause of the
Eighth Amendment to a punitive damages award, the Court in
Browning-Ferris described a civil action as one involving a dispute
between private parties and damages paid to a private party or other
remedies for a private wrong, and a criminal action as one involving
the prosecution of conduct by a sovereign to exact punishment. Id. at
272; id. at 296 (O’Connor & Stevens, JJ., concurring in part and dis-
senting in part). While that distinction might not be universally true
and therefore is likely to be imperfect, it nonetheless serves to high-
light the reality that a habeas corpus proceeding is neither a wholly
criminal nor a wholly civil action, but rather a hybrid action that is
unique, a category unto itself. See Walker v. O’Brien, 216 F.3d 626,
636 (7th Cir. 2000).
The habeas corpus proceeding is specifically designed to protect
individual liberty and redress unlawful detention. "[T]he essence of
habeas corpus is an attack by a person in custody upon the legality
of that custody, and . . . the traditional function of the writ is to secure
release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484
(1973); see also Fay v. Noia, 372 U.S. 391, 430 (1963) (explaining
that the "jurisdictional prerequisite" of a habeas proceeding is "deten-
tion simpliciter"). Thus, to the extent that a habeas proceeding
reviews a criminal punishment with the potential of overturning it, the
habeas proceeding necessarily assumes part of the underlying case’s
criminal nature in the same sense, for instance, that a declaratory
judgment action takes on aspects of an underlying breach-of-contract
case. This criminal aspect was fully recognized by the Supreme Court
in O’Neal v. McAninch, 513 U.S. 432, 440 (1995), where the Court
10 O’BRIEN v. MOORE
applied a criminal standard of review to habeas proceedings, rather
than a civil standard. See also Murray v. Giarratano, 492 U.S. 1, 13
(1989) (O’Connor, J., concurring) (noting that habeas corpus is a civil
proceeding designed to overturn a presumptively valid criminal judg-
ment); The Federalist No. 83, at 431 (Alexander Hamilton) (George
W. Carey & James McClellan eds., 1990) (noting that habeas corpus
serves as a bulwark against "arbitrary methods of prosecuting pre-
tended offenses, and arbitrary punishments upon arbitrary convic-
tions"). Insofar as a habeas proceeding seeks to vindicate a civil right,
however, it also has a civil aspect. See Tom Tong, 108 U.S. at 559-60.
And this aspect is reinforced by the fact that the procedure for resolv-
ing habeas petitions uses civil rules, albeit a streamlined collection of
them. See Fed. R. Civ. P. 81(a)(2); Rule 11 Governing § 2254 Cases.
Because habeas actions have both criminal and civil aspects, courts
have routinely regarded them as "hybrid" actions. See, e.g., Sloan v.
Pugh, 351 F.3d 1319, 1323 (10th Cir. 2003) (concluding that "habeas
proceedings are ‘unique’ or ‘hybrid’ types of cases"); United States
v. Johnston, 258 F.3d 361, 365 (5th Cir. 2001) (noting that a "§ 2255
motion is a hybrid, with characteristics indicative of both civil and
criminal proceedings"); Parrott v. Virgin Islands, 230 F.3d 615, 620
n.7 (3d Cir. 2000) (noting that "habeas corpus proceedings are hybrid
ones"); United States v. Jones, 215 F.3d 467, 468 (4th Cir. 2000) (not-
ing that "habeas actions are a unique hybrid of civil and criminal");
Santana v. United States, 98 F.3d 752, 754 (3d Cir. 1996) (noting that
habeas corpus cases are "in effect, hybrid actions whose nature is not
adequately captured by the phrase ‘civil action’"); cf. Walker v.
O’Brien, 216 F.3d 626, 636 (7th Cir. 2000) (noting that habeas pro-
ceedings are a "group unto themselves"); Smith v. Angelone, 111 F.3d
1126, 1130 (4th Cir. 1997) (noting that a habeas proceeding is "‘more
accurately regarded as being sui generis’" (quoting Martin v. United
States, 96 F.3d 853, 855 (7th Cir. 1996))).
And because habeas actions have both a criminal and civil nature,
when a statutory provision regulates a "civil action," we can only con-
clude that it does not necessarily follow that it also regulates a habeas
proceeding. This approach is amply demonstrated by a line of cases
in which courts have considered such statutory provisions.
For example, in Schlanger v. Seamans, 401 U.S. 487, 490 n.4
(1971), the Supreme Court noted that national service of process,
O’BRIEN v. MOORE 11
which is authorized in "civil actions" against officials of the United
States under 28 U.S.C. § 1391(e), is not authorized in a habeas pro-
ceeding, even though the statute does not explicitly exclude habeas
proceedings.
In Smith, 111 F.3d 1126, we concluded that the term "civil action"
as used in the Prison Litigation Reform Act ("PLRA") does not
include habeas proceedings. Section 1915 of the PLRA authorizes in
forma pauperis status to prisoners who "seek[ ] to bring a civil action
or appeal a judgment in a civil action." 28 U.S.C. § 1915(a)(2)
(emphasis added). In rejecting an interpretation that "civil action"
includes a habeas action, we stated:
The PLRA does not define "civil action," and does not
explicitly include or exclude habeas litigants from its reach.
Although a habeas proceeding is considered a civil action
for some purposes, it is more accurately regarded as being
sui generis.
111 F.3d at 1130 (internal quotation marks and citations omitted).
Accordingly, we held that the in forma pauperis filing fee provisions
of the PLRA that apply to civil actions do not apply to habeas actions.
Id. at 1131.
In the same vein, the Supreme Court has repeatedly rejected the
notion that simply because a habeas action is civil in nature, it must
be treated as a civil action. Indeed, the Court has time and again high-
lighted the distinctions between the two types of actions.
Thus, in Harris v. Nelson, the Court held that the discovery rules
in the Federal Rules of Civil Procedure, which are applicable in civil
actions, did not apply to habeas proceedings. Focusing on Federal
Rule of Civil Procedure 81(a)(2), which applies the civil rules to
habeas proceedings to the extent that the practice in such proceedings
"has heretofore conformed to the practice in civil actions," the Court
concluded that habeas practice in federal courts "has conformed with
civil practice only in a general sense" and that such conformity did
not include discovery as provided in the civil discovery rules. 394
U.S. at 293-94. Indeed, the Court was unwilling more generally to
12 O’BRIEN v. MOORE
accept the characterization of habeas proceedings as civil. Id. Rather,
it preferred to recognize them as "unique." Id. at 294.
Similarly, in Browder v. Director, Illinois Department of Correc-
tions, 434 U.S. 257, 269 n.14 (1978), the Supreme Court noted that
Federal Rule of Civil Procedure 12(b)(6), which is applicable in civil
actions, did not apply to habeas corpus proceedings. Moreover, it
observed that the civil action procedural sequencing — from a motion
to dismiss, to an answer, to discovery, and ultimately to trial — was
not applicable in habeas cases. Indeed, the Court had observed in a
case decided shortly before Browder that such civil practice would
defeat the "swift, flexible, and summary determination" around which
the habeas process was designed. Preiser, 411 U.S. at 495.
Finally, in O’Neal, 513 U.S. 432, the Court was faced with the
question of whether the harmless error standard of review in civil
cases should apply to federal habeas proceedings. Concluding that the
substance of habeas involved more criminal issues than civil ones, the
Court refused to apply the civil standard of review:
One problem with [the argument that the civil harmless
error standard applies in the habeas context] lies in its fail-
ure to take into account the stakes involved in a habeas pro-
ceeding. Unlike the civil cases cited by the State, the errors
being considered by a habeas court occurred in a criminal
proceeding, and therefore, although habeas is a civil pro-
ceeding, someone’s custody, rather than mere civil liability,
is at stake.
Id. at 440.
Thus, even though a habeas action sometimes functions in a man-
ner similar to a civil action, the circumstances where it does not so
function are sufficiently numerous to preclude the conclusion that
when a "civil action" is regulated, the regulation necessarily includes
a habeas action. Thus, in enacting the EAJA and authorizing that an
award of attorneys fees may be assessed against the United States in
"civil actions," Congress did not expressly include habeas actions.
More relevant to the analysis here, using the term "civil action" did
not unequivocally or unambiguously include habeas actions, and per-
O’BRIEN v. MOORE 13
haps for good reason. The EAJA’s policy of leveling the playing field
in civil litigation against the United States, particularly when the
United States has taken a position that is not substantially justified,
see, e.g., Roanoke River Basin Ass’n v. Hudson, 991 F.2d 132, 138
(4th Cir. 1993), does not clearly apply to habeas litigation, which is
pursued freely by petitioners without the need for the EAJA’s incen-
tives, see, e.g., Boudin, 732 F.2d 1112-15.
In holding that "civil action" as used in the EAJA does not
unequivocally and unambiguously include a habeas proceeding, we
join similar holdings made by two other courts of appeals. See Ewing
v. Rogers, 826 F.2d 967, 971 (10th Cir. 1987); Boudin, 732 F.2d at
1112. But see In re Hill, 775 F.2d 1037, 1040-41 (9th Cir. 1985) (con-
cluding that a habeas proceeding involving asylum constituted a civil
action for purposes of the EAJA).
O’Brien argues that the term "civil action" as used in the EAJA
includes "proceedings for judicial review of agency action," and that
his habeas action in this case was a proceeding to review agency
action "regardless of the procedural vehicle used to present the
claim." Stated otherwise, O’Brien suggests that regardless of the fact
that his action was styled as a "Joint Petition for a Writ of Habeas
Corpus," it was in fact directed at challenging an administrative pol-
icy. Accordingly, he argues, that it was a "civil action" for purposes
of the EAJA.
This approach has been followed by some courts, but solely when
the habeas corpus proceeding was filed in an immigration context.
See, e.g., Sotello-Aquije v. Slattery, 62 F.3d 54, 56, 59 (2d Cir. 1995)
(ordering that attorneys fees be awarded under the EAJA to a habeas
corpus petitioner who challenged the decision to "deny him asylum"
in the United States); In re Hill, 775 F.2d at 1040-41 (holding that a
habeas corpus petition that challenged the regulatory policy of the
INS was a "civil action" for purposes of the EAJA). These cases rely
on a dichotomy between the role of habeas corpus as a vehicle to
obtain admission to this country and the role of habeas corpus as a
remedy for unlawful criminal custody. The Ninth Circuit, for exam-
ple, stated that because the habeas corpus position in In re Hill was
outside the "criminal context," there was no "custodial incentive" to
challenge the governmental action in question. 775 F.2d at 1040-41.
14 O’BRIEN v. MOORE
O’Brien’s circumstances, however, are readily distinguishable from
these immigration cases.
O’Brien’s case is a classic habeas action by a person in custody
attacking "the legality of that custody." Preiser, 411 U.S. at 484. He
contended that he would unlawfully be subjected to detention in a
federal prison when the Bureau of Prisons proposed to transfer him
from a halfway house to a federal prison camp, and based on his
claim that such detention in a federal prison camp would be illegal,
he obtained an injunction against his transfer.
Moreover, to the extent that Sotello-Aquije and Hill stand in ten-
sion with the holdings in Ewing and Boudin, we find Ewing and
Boudin to be more persuasive. See also 1 Mary F. Derfner & Arthur
D. Wolf, Court Awarded Attorney Fees ¶ 7.04[4], at 7-74 & n.89
(2004) (citing the Hill court’s inclusion of certain types of habeas cor-
pus cases under the EAJA as an example of "spotty" adherence by the
courts to the rule that waivers of sovereign immunity are to be strictly
construed).
At bottom, one cannot reasonably conclude that the authorization
for an award of attorneys fees in "civil actions," as provided by the
EAJA, includes an unequivocal expression of congressional intent to
authorize an award of attorneys fees to a prevailing party against the
United States in a habeas proceeding. There are simply too many dis-
tinctions between habeas proceedings and civil proceedings to permit
such a conclusion.
Because the EAJA’s waiver of sovereign immunity to awards of
attorneys fees does not extend to habeas corpus proceedings, the
award in this case against the United States is barred. Accordingly,
we reverse and vacate the district court’s order making such an award.
REVERSED AND VACATED