U.S. solicitor general's office at Main Justice. Credit: Mike Scarcella/ ALM

The U.S. Supreme Court on Tuesday refused to take up the Justice Department's challenge to a federal appeals court decision that lambasted government lawyers for their conduct in a case involving a former Stanford University graduate student wrongly placed on the "no-fly" list.

The U.S. Court of Appeals for the Ninth Circuit in January ordered a federal judge to take a fresh look at whether government lawyers acted in "bad faith" as they responded to Rahinah Ibrahim's claims that she never should have been included on the list. The appeals ruling said the government for years had played "discovery games, made false representations to the court, misused the court's time, and interfered with the public's right of access to trial."

In the course of the litigation, an FBI agent testified that he had misunderstood a form and marked the wrong boxes when he nominated Ibrahim for the no-fly list in 2004. A decade later, U.S. District Judge William Alsup described that move as "no minor human error but an error with palpable impact, leading to the humiliation, cuffing, and incarceration of an innocent and incapacitated air traveler."

"That it was human error may seem hard to accept—the FBI agent filled out the nomination form in a way exactly opposite from the instructions on the form, a bureaucratic analogy to a surgeon amputating the wrong digit—human error, yes, but of considerable consequence," Alsup wrote in the 2014 ruling.

Ibrahim, a Malaysian architect with a doctorate from Stanford, prevailed at trial against her designation on the government's "no fly list." Yet Alsup granted only a fraction of the hundreds of thousands of dollars in legal fees Ibrahim's lawyers had requested.

The Ninth Circuit's rebuke of government lawyers came in a decision that also faulted Alsup for errors in his review of the fees owed to Ibrahim's legal team.

The government, which has long denied any misconduct, urged the Supreme Court to review the Ninth Circuit's decision. The justices declined the invitation without comment. Justice Samuel Alito Jr. voted in favor of granting the Justice Department's petition.

Ibrahim was represented in the Supreme Court by a team from Hogan Lovells, including Neal Katyal, a former Obama-era acting U.S. solicitor general who was counsel of record. Federal officials have conceded that placing Ibrahim on the list was inadvertent.

"I was surprised that the solicitor general took this case to the Supreme Court. I feel like this administration has taken cases to the Supreme Court involving immigrants and individual rights that are surprising and unfortunate," Katyal said Tuesday in an interview. "When I took it, I realized the odds of getting the Supreme Court to deny certiorari when the solicitor general seeks it in a national security case are close to nil. But I wanted to try. And I was very pleased the Supreme Court did deny cert today."

Neal Katyal, a partner with Hogan Lovells in Washington, D.C. Photo: Diego M. Radzinschi / NLJ

Katyal said he joined the case because he saw "a grave injustice that had happened, and then the government doubling down on that injustice."

"Having worked in government, I understand the government makes mistakes," he said. "What happened here was a repeated pattern of hiding those mistakes."

The Ninth Circuit decision recounted in detail Ibrahim's fight against her placement on the "no fly list."

"Dr. Ibrahim should not have had to endure over a decade of contentious litigation, two trips to the court of appeals, extensive discovery, over 800 docket entries amounting to many thousands of pages of record, and a weeklong trial the government precluded her (and her U.S.-citizen daughter) from attending, only to come full circle to the government's concession that she never belonged on the No Fly list at all—that she is not and never was a terrorist or threat to airline passenger or civil aviation security," Judge Kim McLane Wardlaw wrote for the panel.

The Justice Department argued in its petition at the Supreme Court that "far from being in bad faith, the government's actions were entirely proper and in accord with decisions of this court and the Ninth Circuit itself."

At the high court, U.S. Solicitor General Noel Francisco argued the Ninth Circuit's ruling "threatens to undermine the government's efforts to fairly but vigorously litigate to protect the public interest in the future. It also unfairly impugns the integrity of the career government attorneys faithfully carrying out their duty to defend the government's policies and protect its sensitive information."

Justice Department lawyers skewered the Ninth Circuit's ruling, saying the court engaged in "a wide-ranging and fundamentally misguided critique of the government's efforts to maintain the confidentiality and integrity of the No Fly List, and other government lists, with full respect for the judicial process."

Ibrahim's lawyers at Hogan Lovells disputed that the Ninth Circuit decision would carry any broader consequences for government lawyers.

"The crux of the Ninth Circuit's ruling is that if the government spends years litigating to conceal what it knew all along was a mistake, that may support a finding of bad faith," Katyal wrote. "This precedent will thus only affect those (hopefully) few cases where the government defends what it knows are errors affecting substantial individual rights."