and 24-3198 ADOLPH MICHELIN v. Warden Moshannon Valley Correctional Center

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 24-2990 and 24-3198
ADOLPH MICHELIN
v.
WARDEN MOSHANNON VALLEY CORRECTIONAL
CENTER; DIRECTOR PHILADELPHIA FIELD OFFICE
IMMIGRATION AND CUSTOMS ENFORCEMENT;
DIRECTOR UNITED STATES IMMIGRATION AND
CUSTOMS
ENFORCEMENT; SECRETARY UNITED STATES
DEPARTMENT OF HOMELAND SECURITY;
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Appellants in case 24-2990
ADEWUMI ABIOYE
v.
WARDEN MOSHANNON VALLEY PROCESSING
CENTER; ACTING FIELD OFFICE DIRECTOR OF THE
IMMIGRATION and CUSTOMS ENFORCEMENT and
REMOVAL OPERATIONS PHILADELPHIA FIELD
OFFICE; SECRETARY UNITED STATES DEPARTMENT

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OF HOMELAND SECURITY;
ATTORNEY GENERAL UNITED STATES,
Appellants in case 24-3198
Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court Nos. 3:23-cv-00022 and 3:23-cv-00251)
Magistrate Judges: Honorable Patricia L. Dodge and
Honorable Christopher B. Brown
Argued on November 10, 2025
Before: RESTREPO, McKEE, and AMBRO, Circuit Judges
(Opinion filed: February 2, 2026)
Laura S. Irwin
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Joseph A. McCarter [Argued]
Sarah S. Wilson
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

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Counsel for Appellants Warden
Moshannon Valley Correctional Center,
Directory Philadelphia Field Office
Immigration and Customs Enforcement,
Director United States Immigration and
Customs Enforcement, Secretary United
States Department of Homeland Security,
Attorney General United States of
America
Casey Corcoran
Robert S. Jones
Andrew Tutt
Kathleen Weng
Arnold & Porter Kaye Scholer
601 Massachusetts Avenue NW
Suite 1121
Washington, DC 20001
Jonah B. Eaton
Nationalities Service Center
1216 Arch Street
4th Floor
Philadelphia, PA 19107
Nicole L. Masiello
William Sharon [Argued]
Arnold & Porter Kaye Scholer
250 W 55th Street
New York, NY 10019
Counsel for Appellees Adolph Michelin
and Adewumi Abioye

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OPINION OF THE COURT
AMBRO, Circuit Judge
A petition for a writ of habeas corpus has been a civil
action since before our law was our law. In the mid-eighteenth
century, just before our Founding, William Blackstone
observed that the law we were about to inherit had two
“primary objects”: “the establishment of rights, and the
prohibition of wrongs.” 3 William Blackstone, Commentaries
on the Laws of England 1 (1772). There were two types of
wrongs: “private wrongs, and public wrongs.” Id. at 2
(emphasis omitted). Public wrongs, he explained, “are a breach
and violation of public rights and duties, which affect the
whole community considered as a community; and are
distinguished by the harsher appellation of crimes and
misdemeanors.” Id. (emphasis omitted). Private wrongs, by
contrast, “are an infringement or privation of the private or
civil rights belonging to individuals, considered as individuals;
and are thereupon frequently termed civil injuries.” Id.
(emphasis omitted). For public wrongs, the remedy came by a
criminal action. For private wrongs, the remedy required the
“application to . . . courts of justice . . . by civil suit or action.”
Id. at 3.
One civil right, secured by civil action, was that of
“personal liberty.” Id. at 119. When this right was violated, the
prisoner could petition a court to “remov[e] the injury of unjust
and illegal confinement,” id. at 137 (emphasis omitted), by

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“commanding” whomever held him in custody “to produce the
body” and explain the “cause of his caption and detention,” id.
at 131. And so, in listing the civil actions available for “the
redress of private wrongs,” Blackstone lauded “the most
celebrated writ in the English law,” id. at 129—the “great and
efficacious writ” that would restore the captive to liberty, id. at
131—the writ of habeas corpus.
After we overthrew the English crown, we retained this
framework from English common law. See, e.g., Watson v.
Mercer, 33 U.S. (8 Pet.) 88, 110 (1834) (distinguishing “civil
proceedings[,] which affect private rights,” from “criminal
proceedings[,] which impose punishments”); Bradlie v. Md.
Ins. Co., 37 U.S. (12 Pet.) 378, 402 (1838) (defining
“proceedings of a mere civil nature” as those “to enforce
private rights”). We also retained the recognition that habeas is
a civil action. See Holmes v. Jennison, 39 U.S. (14 Pet.) 540,
565–67 (1840) (holding “it is too plain for argument” that a
petition for a writ of habeas corpus is a civil action under the
Judiciary Act of 1789); Ex parte Tom Tong, 108 U.S. 556, 559–
60 (1883) (“The writ of habeas corpus is the remedy which the
law gives for the enforcement of the civil right of personal
liberty.”).
Much has changed over the centuries. Not this. See, e.g.,
Banister v. Davis, 590 U.S. 504, 507 (2020) (“Habeas
proceedings, for those new to the area, are civil in nature.”).1
1 On the enduring authority of Blackstone’s account of the writ
of habeas corpus, see, e.g., Brown v. Davenport, 596 U.S. 118,
128 (2022); Ex parte Bollman, 8 U.S. (4 Cranch) 75, 97 (1807).

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Today the Equal Access to Justice Act (EAJA) provides
that the prevailing private party “in any civil action (other than
cases sounding in tort)” brought by or against the United States
is entitled to attorneys’ fees and costs if the Government’s
position was not “substantially justified” or “special
circumstances make an award unjust.” 28 U.S.C. §
2412(d)(1)(A). Adolph “Lee” Michelin and Adewumi Abioye
prevailed in habeas actions under 28 U.S.C. § 2241 challenging
their immigration detentions. The District Courts found the
Government’s positions were not “substantially justified” and
awarded the detainees fees and costs. The main question these
consolidated cases present is whether a petition for a writ of
habeas corpus from immigration detention under § 2241 is an
EAJA “civil action.”
We answer yes and thus affirm.
I. BACKGROUND
We begin with the facts of the two cases.
A. Abioye
Abioye, a Nigerian citizen, entered the United States in
April 2018 on a tourist visa. In July 2020, he pled guilty in the
U.S. District Court for the District of Maryland to conspiracy
to commit wire fraud in violation of 18 U.S.C. §§ 1343 and
1349. In May 2022—the day he completed his sentence—
federal Immigration and Customs Enforcement (ICE) agents
took him into immigration detention at the Moshannon Valley

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Processing Center.2 An immigration judge ordered him
removed to Nigeria. The next year, the Board of Immigration
Appeals (BIA) affirmed. In June 2023, Abioye petitioned for
review and a stay of removal from the U.S. Court of Appeals
for the Fourth Circuit. It stayed removal pending review of his
petition.
In October 2023, after over 16 months in immigration
detention, Abioye petitioned the U.S. District Court for the
Western District of Pennsylvania for a writ of habeas corpus
under § 2241 challenging his detention without an
individualized bond hearing as a violation of the Fifth
Amendment’s Due Process Clause. The Government opposed
his petition. The next month, the District Court granted the writ
and ordered a bond hearing. In December an immigration
judge released him on a $5,000 bond.
Abioye moved for attorneys’ fees and costs under §
2412(d)(1)(A) of the EAJA. The District Court found the
Government’s position was not substantially justified and
awarded him $18,224.58.
B. Michelin
ICE agents arrested Michelin, a Jamaican citizen, in
January 2022 and detained him at Moshannon. A year later, he
was still detained—and had no bond hearing. Although he had
petitioned the BIA to reopen his immigration case, it had not
responded. So he too petitioned for a writ of habeas corpus
2 From March to August 2023, Abioye was held at the Pike
County Correctional Facility; otherwise, he was held at
Moshannon.

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under § 2241 from the U.S. District Court for the Western
District of Pennsylvania. It granted his petition, holding his
prolonged detention without an individualized bond hearing
violated the Fifth Amendment’s Due Process Clause. An
immigration judge released Michelin on a $10,000 bond, and
he rejoined his family in Philadelphia.
Michelin sought an award of attorneys’ fees and costs
per the EAJA. The District Court found the Government’s
position not substantially justified and awarded him
$15,841.60.
* * *
The United States appealed both decisions. We
consolidated the appeals.
II. JURISDICTION AND STANDARDS OF REVIEW
We have appellate jurisdiction to review fee awards
under 28 U.S.C. § 1291. Whether we have subject matter
jurisdiction depends on the question at the heart of this appeal:
whether the EAJA waives federal sovereign immunity to fee
awards for habeas actions challenging civil immigration
detention. Our review of legal questions is plenary. Newmark
v. Principi, 283 F.3d 172, 174 (3d Cir. 2002). We review for
abuse of discretion a district court’s finding that the
Government’s position was not substantially justified. Cruz v.
Comm’r of Soc. Sec., 630 F.3d 321, 324 (3d Cir. 2010).
III. DISCUSSION
The EAJA provides:

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[A] court shall award to a prevailing party other
than the United States fees and other expenses . .
. incurred by that party in any civil action (other
than cases sounding in tort) . . . brought by or
against the United States . . . unless the court
finds that the position of the United States was
substantially justified or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). These appeals concern whether a
habeas challenge to immigration detention pursuant to § 2241
is a “civil action” under the EAJA. It is. The Abioye appeal also
asks whether the Government’s position in that case was
substantially justified. It was not.
A. The phrase “any civil action (other than cases sounding
tort)” in the EAJA unambiguously encompasses habeas
challenges to immigration detention under § 2241.
The “cardinal canon” of statutory interpretation is the
“presumption that a legislature says in a statute what it means
and means in a statute what it says there.” Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253–54 (1992) (cleaned up). On
Abioye’s and Michelin’s reading, the EAJA means what it
says: save torts, it covers all civil actions; hence, habeas is
included. To the Government, it does not: the statute could
mean only “purely,” “wholly,” or “garden-variety” civil
actions, Abioye Opening Br. 25; habeas is excluded.
We agree with Abioye and Michelin. Habeas actions are
civil actions. And the complete phrase—“any civil action
(other than cases sounding in tort)”—clearly encompasses
them. We grant the Government this: in some instances, the

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phrase “civil action” does not cover habeas actions. But those
situations are the exceptions, not the rule. And the EAJA
cannot plausibly be read that way.
1. The sovereign immunity canon applies only if a
statute is ambiguous after deploying the ordinary
tools of statutory interpretation.
Before we go further, we pause to clarify what we are
looking for where, as here, a statute implicates the sovereign
immunity of the federal Government.
Generally, the United States enjoys sovereign immunity
from awards of monetary relief. FDIC v. Meyer, 510 U.S. 471,
475 (1994). However, the Government may waive sovereign
immunity by statute. Kirtz v. Trans Union LLC, 46 F.4th 159,
164 (3d Cir. 2022). “[A] waiver of sovereign immunity must
be ‘unequivocally expressed’ in statutory text.” FAA v. Cooper,
566 U.S. 284, 290 (2012) (quoting Lane v. Peña, 518 U.S. 187,
192 (1996)). Any ambiguity is “to be construed in favor of
immunity,” id. (citing United States v. Williams, 514 U.S. 527,
531 (1995)), whether it concerns the existence of a waiver or
the scope of one, id. at 291. The EAJA’s fee award provision is
a statutory waiver of sovereign immunity. Ardestani v. INS, 502
U.S. 129, 137 (1991). Accordingly, if the phrase “any civil
action” is ambiguous between an interpretation that reaches
habeas actions and one that does not, then we must construe
the scope of the waiver to exclude them.
Still, “the clarity of each statute must be evaluated on its
own terms.” Dep’t of Agric. Rural Dev. Rural Hous. Serv. v.
Kirtz, 601 U.S. 42, 52 (2024) (cleaned up). What matters is
whether the statute is ambiguous after exhausting the

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traditional tools of statutory interpretation, not before. United
States v. Rutherford, 120 F.4th 360, 380 n.28 (3d Cir. 2024).
Cf. Sebelius v. Cloer, 569 U.S. 369, 376–81 (2013) (holding
provision unambiguous and declining to apply sovereign
immunity canon after considering text, structure, and
purpose).3 If there is “no ambiguity left,” “[t]here is no need
for us to resort to the sovereign immunity canon.” Richlin Sec.
Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008). Only if, after
exhausting these tools, “there is a plausible interpretation of the
statute that would not authorize money damages against the
Government” do we “take the interpretation most favorable” to
it. Cooper, 566 U.S. at 290–91.
2. Habeas challenges to immigration detention under 28
U.S.C. § 2241 are civil actions.
“When interpreting a statute, we begin with the text.”
Lackey v. Stinnie, 604 U.S. 192, 199 (2025). To repeat, the
EAJA permits awards of fees and costs in “any civil action
3 We leave two tools—purpose and legislative history—in the
toolbox. The Supreme Court has admonished that “no amount
of legislative history can supply a waiver that is not clearly
evident from the language of the statute.” Kirtz, 601 U.S. at 49
(cleaned up). And we take its directive to focus on “the
language of the statute” in discerning the existence and scope
of a waiver to caution against considering purpose as well. Id.;
see also Ardestani, 502 U.S. at 138 (finding that “the broad
purposes of the EAJA would be served by making the statute
applicable to deportation proceedings,” but declining to
“extend the EAJA to [them] when the plain language of the
statute, coupled with the strict construction of waivers of
sovereign immunity, constrain us to do otherwise”).

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(other than cases sounding in tort).” 28 U.S.C. §
2412(d)(1)(A). The statute does not define “civil action.” In the
absence of a statutory definition, we “start with the phrase’s
plain meaning” in 1980, when Congress enacted it in 1980.
Clean Air Council v. U.S. Steel Corp., 4 F.4th 204, 209 (3d Cir.
2021). It was “well settled” then that habeas corpus is a civil
action. Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257,
269 (1978); see also Stafford v. Briggs, 444 U.S. 527, 543
(1980) (“Habeas corpus is a civil action.” (cleaned up)). Thus,
we have acknowledged that the “plain meaning” and “literal
scope” of the phrase “civil action” include habeas actions. See
Santana v. United States, 98 F.3d 752, 754 (3d Cir. 1996).
The same is true when we consider “civil action” as a
legal term of art. When Congress enacted the EAJA, legal
dictionaries defined “civil action” on broad terms that reached
habeas proceedings. See, e.g., Black’s Law Dictionary 222 (5th
ed. 1979) (defining civil actions as “[a]ction[s] brought to
enforce, redress, or protect private rights” or as “all types of
actions other than criminal proceedings”); Radin Law
Dictionary 55 (2d ed. 1970) (defining a civil action as a “legal
proceeding brought to enforce a civil right or obtain redress for
its violation”); Ballentine’s Law Dictionary 202 (3d ed. 1969)
(the phrase “comprehend[s] every conceivable cause of action,
whether legal or equitable, except such as are criminal in the
usual sense”).
No wonder then that, at the time of the EAJA’s
enactment, the Federal Rules of Civil Procedure treated habeas
proceedings as civil actions. Rule 1 provided that the Rules
applied to “all suits of a civil nature . . . with the exceptions
stated in Rule 81.” Fed. R. Civ. P. 1 (1980). And Rule 81
specified the Rules “are applicable to proceedings for . . .

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habeas corpus . . . to the extent that the practice in such
proceedings is not set forth in statutes of the United States and
has heretofore conformed to the practice in civil actions.” Fed.
R. Civ. P. 81(a) (1980). We know of no relevant statute or
practice that would have negated the civil status of immigration
challenges like this one. In any event, what matters most is that
the Rules generally presumed habeas actions were civil
actions, even if they were also distinctive ones. Harris v.
Nelson, 394 U.S. 286, 293–94 (1969).4
The common law history confirms habeas proceedings
are civil actions. “When Congress uses a term with origins in
the common law, we generally presume that the term ‘brings
the old soil with it.’” Kousisis v. United States, 605 U.S. 114,
124 (2025) (quoting Sekhar v. United States, 570 U.S. 729, 733
(2013)); see also Lackey, 604 U.S. at 200. “Civil action” is one
such term. As we described at the outset, the writ of habeas
corpus has deep roots in that rich soil. See 3 Blackstone at 115–
38; see also Ex parte Yerger, 75 U.S. (8 Wall.) 85, 96 (1868)
4 Today, Rule 81 continues to provide that the Rules “apply to
proceedings for habeas corpus” under almost identical
conditions. See Rule 81(a)(4). That said, our holding is that a
habeas petition under § 2241 challenging immigration
detention is a “civil action” for purposes of the EAJA, not that
such an action is a “civil action” for purposes of the Federal
Rules of Civil Procedure. We have no occasion to address the
latter topic. In any event, some provisions would caution
against reading every use of “civil action” that way. For
instance, Rule 3 provides that “[a] civil action is commenced
by filing a complaint with the court,” Fed. R. Civ. P. 3, yet a
habeas action begins with what the statute dubs “an
application,” 28 U.S.C. § 2241. So we do not decide this issue.

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(holding the Supreme Court had the power to issue writs of
habeas corpus, one of “the most important powers in civil cases
of all the highest courts of England”); Kurtz v. Moffitt, 115 U.S.
487, 494 (1885) (“A writ of habeas corpus . . . is a civil suit or
proceeding, brought by him to assert the civil right of personal
liberty, against those who are holding him in custody[.]”).
The Government strains to deny habeas actions are
civil. It acknowledges—as it must—that the Supreme Court
and our Court have recognized habeas proceedings are at least
“technically” civil actions. See Abioye Opening Br. 21 (quoting
Schlanger v. Seamans, 401 U.S. 487, 490 n.4 (1971)), 27
(quoting Santana, 98 F.3d at 754). Nonetheless, the
Government insists habeas actions are “not wholly civil,”
Abioye Opening Br. 31, but rather “unique, hybrid actions in a
category of their own,” Abioye Opening Br. 11.
The “hybrid” theory raises a question: A hybrid of what
and what? The Government avoids saying in its brief, because
the answer exposes this argument as a dead end. To the extent
habeas actions are hybrids, they are hybrids of civil actions and
criminal ones. See, e.g., Santana, 98 F.3d at 754; O’Brien v.
Moore, 395 F.3d 499, 505 (4th Cir. 2005); see also Abioye
Opening Br. 8 (recounting that the Government told the
District Court habeas actions were “hybrid criminal/civil
proceedings”). The idea is that “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.” O’Brien, 395
F.3d at 505.
But we are not reviewing habeas petitions for release
from criminal detention. We are reviewing them for release

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from immigration detention. In that context, every element is
civil. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001)
(recognizing immigration detention is “civil detention”); INS
v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (recognizing
removal proceedings are civil). Even immigration actions
subject to sui generis procedures, like removal proceedings
before an immigration judge, are “purely civil.” Lopez-
Mendoza, 468 U.S. at 1038. A hybrid of a civil action and a
civil action is a civil action.
Resisting that conclusion, the Government offers two
additional arguments that all habeas actions are in a category
of their own. The first says habeas is “unique” because it seeks
release from confinement. Abioye Opening Br. 31. But what
settles its status is the right it seeks to vindicate, not the remedy.
Habeas actions are civil because they protect the civil right to
personal liberty. See 3 Blackstone at 115–38; Santana, 98 F.3d
at 754 (citing Ex parte Tom Tong, 108 U.S. at 559). Second,
the Government suggests habeas is not civil because it does not
share every feature of archetypal civil actions. True enough.
But it does not follow that habeas is not a civil action. Many
civil actions—including ones expressly within the scope of the
EAJA’s “civil action” provision—have unique rules of practice
or procedure, like veterans’ benefits actions. See Henderson v.
Shinseki, 562 U.S. 428, 440 (2011) (observing “[t]he contrast
between ordinary civil litigation . . . and the system that
Congress created for the adjudication of veterans’ benefits
claims could hardly be more dramatic”); 28 U.S.C.
§§ 2412(d)(1)(A) (awarding fees in “any civil action” brought
“in any court”), (d)(2)(F) (defining “court” to include “the
United States Court of Appeals for Veterans Claims”).

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Finally, the Government argues habeas is something
other than a civil action because, on rare occasion, courts have
held habeas actions fall outside the scope of particular statutory
references to “civil actions.” However, none of those decisions
repudiated the centuries-long doctrine that habeas actions are
civil. And none undermined the presumption Congress used
the term in the EAJA with that history in mind. See Bruesewitz
v. Wyeth LLC, 562 U.S. 223, 243 (2011) (noting that when
“nearly all of the relevant judicial decisions have given a term
or concept a consistent judicial gloss, we presume Congress
intended the term or concept to have that meaning when it
incorporated it into a later-enacted statute” (cleaned up)). All
these decisions did was acknowledge reasons specific to those
statutes to treat habeas differently there. They do not create any
ambiguity here, much less change the nature of habeas.
Consider each of the cases. The Supreme Court once
said in a footnote that Congress’s provision for nationwide
service of process in “a civil action” in 28 U.S.C. § 1391(e) did
not apply to habeas actions. Schlanger, 401 U.S. at 490 n.4. It
once criticized “the label [‘civil action’] [a]s gross and
inexact.” Harris, 394 U.S. at 293–94. And we have described
habeas as “somewhat of a hybrid,” Callwood v. Enow, 230
F.3d 627, 632 (3d Cir. 2000), and held that “a civil action” in
one provision of the Prison Litigation Reform Act (PLRA)
does not cover habeas actions, Santana, 98 F.3d at 754–56.
None of these decisions held habeas actions are not
civil. In fact, each one reaffirmed that they are. See Schlanger,
401 U.S. at 490 n.4 (acknowledging “habeas corpus is
technically ‘civil,’” even though it “is not automatically subject
to all the rules governing ordinary civil actions”); Harris, 394
U.S. at 293–94 (affirming habeas corpus is “characterized as

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‘civil’” even though “the proceeding is unique” in that it “has
conformed with civil practice only in a general sense”);
Callwood, 230 F.3d at 632 (“A suit seeking a writ of habeas
corpus, although admittedly somewhat of a hybrid, is
considered civil in nature.”); Santana, 98 F.3d at 754–55
(describing habeas proceedings as, “in effect, hybrid actions,”
but reiterating that “[h]abeas corpus proceedings are
technically civil actions,” “independent civil dispositions of
completed criminal proceedings”). That is why in Callwood,
after calling habeas a hybrid, we reaffirmed it was a civil
action. 230 F.3d at 632. We have just done so again, “hold[ing]
that the phrase ‘civil action’ in [28 U.S.C.] § 1631”—a statute
enacted just two years after the EAJA—“encompasses habeas
proceedings,” even “though they are hybrid actions.” Khalil v.
President, United States of America et al., Nos. 25-2162 & 25-
2357, 2026 WL 111933, at *5 (3d Cir. 2026). Even if (or when)
habeas is a hybrid, that is a distinctive type of civil action, not
a third category of proceeding beyond civil and criminal.
All Schlanger, Harris, and Santana held was that the
particular provisions before them used “civil action” in a way
that did not cover habeas. Each reached that conclusion by
doing something we may not: overriding the plain meaning of
statutory text with legislative history. Schlanger acknowledged
“habeas corpus is technically ‘civil’” but reasoned the use of
“civil action” in § 1391(e) did not cover it because “the
legislative history of that section is barren of any indication
that Congress extended habeas corpus jurisdiction.” 401 U.S.
at 490 n.4; see also Stafford, 444 U.S. at 543 (observing
Schlanger “recogniz[ed] that habeas corpus is a ‘civil action,’”
but “turn[ed] to the legislative history to determine which ‘civil
actions’ § 1391(e) governed”). Harris declined to apply
Federal Rule of Civil Procedure 33 to habeas actions despite

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the fact “that habeas corpus proceedings are characterized as
‘civil’” only after divining “the intent of the draftsmen.” 394
U.S. at 293–95. In Santana, we disregarded what we
acknowledged was “the plain meaning” of the text and the
PLRA’s express exclusion of habeas elsewhere, id. at 754–55,
in significant part because of that statute’s legislative history,
id. at 755, and precedents that took the same approach, like
Schlanger and Harris, id. at 754–55. We do not read statutes
this way anymore, Food Mktg. Inst. v. Argus Leader Media,
588 U.S. 427, 436 (2019)—especially not waivers of sovereign
immunity, Kirtz, 601 U.S. at 49.5
These decisions do not make it plausible that, in the
EAJA, “civil action” excludes habeas actions. Each reaffirmed
that they are civil. No surprise, for our law long has recognized
that habeas “is a civil, and not a criminal, proceeding,” see
Fisher v. Baker, 203 U.S. 174, 181 (1906)—a line Harris cited,
394 U.S. at 293; see also, e.g., In re Nwanze, 242 F.3d 521, 526
n.2 (3d Cir. 2001) (“[H]abeas corpus petitions are technically
civil actions[.]”); Parrott v. Gov’t of Virgin Islands, 230 F.3d
615, 620 (3d Cir. 2000) (“Because habeas proceedings are
generally considered civil in nature, the term ‘civil action’
includes habeas petitions.” (citation omitted)); Henderson v.
Frank, 155 F.3d 159, 167 (3d Cir. 1998) (“[T]he writ of habeas
corpus is a civil proceeding[.]”).
5 A panel of our Court once opined that a habeas challenge to
criminal detention is not an EAJA “civil action.” Daley v. Fed.
Bureau of Prisons, 199 F. App’x 119, 121 (3d Cir. 2006). We
are unpersuaded by this unexplained dictum in a not
precedential opinion—not least because the case was an appeal
by a pro se litigant who could not recover attorneys’ fees in the
first place.

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All told, we cannot put it better than the Supreme Court
did when Congress enacted the EAJA: “It is well settled that
habeas corpus is a civil proceeding.” Browder, 434 U.S. at 269;
see also Stafford, 444 U.S. at 543 (“Habeas corpus is a civil
action.” (cleaned up)).6 Accordingly, we hold “civil action” in
the EAJA clearly encompasses habeas challenges to
immigration detention under 28 U.S.C. § 2241.
3. Even if “civil action” were ambiguous, “any civil
action (other than cases sounding in tort)” clearly
covers habeas challenges to immigration detention.
Unable to dislodge the centuries of authority
establishing a petition for a writ of habeas corpus is a civil
action, the Government retreats to the position that the EAJA
is ambiguous between a meaning that includes habeas actions
and one that does not. As we have discussed, even though the
phrase “civil action” almost always covers habeas, there are
rare exceptions when it does not. Emphasizing that fact, the
Government contends that in isolation the phrase “civil action”
might mean either all civil actions or only some subset of them,
excluding the ones that are “unique,” Harris, 394 U.S. at 294,
or “hybrid,” Santana, 98 F.3d at 754. And that, the
6 The Government also contends habeas is not an EAJA “civil
action” because the enacting Congress would have had in mind
the Supreme Court’s relatively recent decisions in Harris and
Schlanger. Even if those decisions held habeas were not
civil—which they did not—this argument would fail by its own
terms, because Browder and Stafford—which expressly
recognized habeas is civil—are years closer to the EAJA’s
enactment.

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Government would have us conclude, means the EAJA’s “civil
action” provision is ambiguous.
However, we do not read statutes in isolation. “A
statutory provision is not ambiguous simply because, by itself,
it is susceptible to differing constructions.” Hayes v. Harvey,
903 F.3d 32, 41 (3d Cir. 2018) (en banc) (cleaned up). “Rather,
in examining statutory language, we take account of the
specific context in which that language is used.” Id. (cleaned
up).7
Here, the most immediate context—the wording on
either side of “civil action”—dispels any doubt the EAJA
encompasses habeas actions. Zoom out one word, and we find
the provision does not just say “civil action.” It says “any civil
action.” 28 U.S.C. § 2412(d)(1)(A). On Abioye’s and
Michelin’s interpretation, the word “any” matters: it conveys
that the statute reaches civil actions “of whatever kind”—even
variations like habeas proceedings. See Cazun v. Att’y Gen.,
856 F.3d 249, 255 (3d Cir. 2017) (quoting Webster’s Third
New International Dictionary 97 (1976)); see also Lac du
Flambeau Band of Lake Superior Chippewa Indians v.
Coughlin, 599 U.S. 382, 390 (2023) (emphasizing the
significance of the Bankruptcy Code’s categorical abrogation
of the sovereign immunity of “any governmental unit that
might attempt to assert it” (emphasis in text)).
Their interpretation commands strong support. The
Supreme Court has held the words “any civil action”
7 For good reason: In isolation, almost anything can be
ambiguous. “Mary had a little lamb” seems clear. But did Mary
own a baby sheep or eat a piece of one for dinner?

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unambiguously cover every civil action not expressly
excepted. Ex parte Collett, 337 U.S. 55, 58 (1949) (“The reach
of ‘any civil action’ is unmistakable.” (footnote omitted)).
On the Government’s interpretation, the word “any”
plays no role. The statute would have had the same scope if
Congress had written “civil action” alone, applying only to
“garden-variety civil actions.” Abioye Opening Br. 25. That
will not do. “We are reluctant to treat statutory terms as
surplusage in any setting.” Bufkin v. Collins, 604 U.S. 369, 386
(2025) (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)).
If “any” means anything, it means “any civil action”
encompasses habeas actions.
The Government responds that “[t]he adjective ‘any’ is
indeed a broad term, but it cannot expand the reach of the noun
it modifies.” Abioye Reply Br. 12–13 (quoting San Francisco
v. EPA, 604 U.S. 334, 348 (2025)). True enough. But the point
is not that “any” expands the scope of “civil action”: the word
gives “civil action” its complete scope, including civil
proceedings with unusual features. Even if habeas is a
distinctive civil action, reading “any civil action” to encompass
a habeas proceeding is not like reading “any mammal” to
“encompass a bird or fish,” see San Francisco, 604 U.S. at 348,
for the Government acknowledges “habeas corpus is
technically ‘civil’”, Abioye Opening Br. 21 (quoting
Schlanger, 401 U.S. at 490 n.4); see also Abioye Reply Br. 10
(“habeas proceedings may ‘technically’ be civil actions”), 13
(“they are ‘technically’ civil actions”). At most, it is like
reading “any mammal” to encompass a platypus—technically
a mammal, even though it lays eggs. See Pugin v. Garland, 599
U.S. 600, 623 (2023) (Sotomayor, J., dissenting).

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Then there are the words that follow “any civil action.”
The EAJA continues with “(other than cases sounding in tort).”
28 U.S.C. § 2412(d)(1)(A). “When Congress provides
exceptions in a statute, . . . [t]he proper inference . . . is that
Congress considered the issue of exceptions and, in the end,
limited the statute to the ones set forth.” United States v.
Johnson, 529 U.S. 53, 58 (2000). Congress explicitly carved
out torts. The “proper inference” is that Congress did not
implicitly carve out habeas actions. The Government’s sole
response is that because habeas is not a civil action, Congress
did not have to exclude it expressly. But as we have shown, it
is civil.
The wider context confirms our conclusion. Interpreting
“any civil action” to include habeas actions is the only way to
harmonize the EAJA with the rest of the U.S. Code.
Interpreting “any civil action” to exclude them would render
the EAJA an anomaly. We strive to construe each word “to
contain that permissible meaning which fits most logically and
comfortably into the body of both previously and subsequently
enacted law.” W. Va. Univ. Hosp., Inc. v. Casey, 499 U.S. 83,
101 (1991), superseded by statute as recognized in Landgraf v.
USI Film Products, 511 U.S. 244, 251 (1994); see also Lac du
Flambeau Band, 599 U.S. at 392–93 & n.3 (holding
Bankruptcy Code’s abrogation of the sovereign immunity of
“governmental units” extends to Indian tribes in part because
“Congress has repeatedly characterized tribes as governments”
in other statutes); Burrage v. United States, 571 U.S. 204, 212
(2014) (interpreting statute in light of how “courts regularly
read” comparable language elsewhere in the U.S. Code);
Bostock v. Clayton Cnty., 590 U.S. 644, 791–92 (2020)
(Kavanaugh, J., dissenting) (observing that “longstanding and
widespread congressional practice matters” in interpreting

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statutes). We do so because “it is our role to make sense rather
than nonsense out of the corpus juris.” W. Va. Univ. Hosp., 499
U.S. at 101.
Every time Congress has used “any civil action” or a
cognate, the phrase encompasses habeas proceedings, save
where Congress expressly excluded them. See, e.g.,
Boumediene v. Bush, 553 U.S. 723, 796 (2008) (permitting the
Government to move for a change of venue for a habeas action
under 28 U.S.C. § 1404(a), which applies to “any civil
action”); German Santos v. Warden Pike Cnty. Corr. Facility,
965 F.3d 203, 208 (3d Cir. 2020) (holding the district court had
jurisdiction over a habeas action under 28 U.S.C. § 1331,
which applies to “all civil actions”); Hilborn v. United States,
163 U.S. 342, 345 (1896) (holding a since-repealed statute
covering “all civil actions” included habeas actions); Reid v.
Covert, 351 U.S. 487, 489–90 (1957) (holding the Supreme
Court had jurisdiction over an appeal from a grant of a habeas
petition pursuant to a since-repealed statute authorizing direct
appeals from “any civil action, suit, or proceeding” meeting
certain requirements); 28 U.S.C. § 1914(a) (“[T]he parties
instituting any civil action, suit or proceeding in [a district]
court . . . [must] pay a filing fee of $350, except that on
application for a writ of habeas corpus the filing fee shall be
$5.”); 18 U.S.C. § 3626(g) (defining the phrase “civil action
with respect to prison conditions” as “any civil proceeding”
meeting certain criteria except “habeas corpus proceedings
challenging the fact or duration of confinement”).
The Government has not produced a single
counterexample. Reading the EAJA consistently with the rest
of the U.S. Code therefore requires reading “any civil action”

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to comprehend habeas actions, as we do everywhere else they
are not carved out by name.
On the Government’s reading, the EAJA is one of a
kind, and not in a good way: the only statute in the U.S. Code
to use “any civil action” to implicitly exclude habeas actions.
On Abioye’s and Michelin’s reading, the EAJA is part of a
consistent, coherent body of law. That is one more reason to
think the statute unambiguously covers habeas proceedings.
In sum, the Government advances a superficially
instinctive argument: because “civil action” does not
invariably cover habeas actions, the phrase must be ambiguous
between an interpretation that does and another that does not.
However, in context—preceded by “any,” followed by a torts
exception, and situated in a body of law where “any civil
action” includes habeas save where explicitly excluded—the
EAJA’s “civil action” provision clearly covers habeas actions
pursuant to 28 U.S.C. § 2241.
4. We hew closest to the Tenth Circuit’s approach.
Our specific issue has divided other courts. The Fourth
and Fifth Circuits have held habeas proceedings are not clearly
EAJA “civil actions.” The Second, Ninth, and Tenth Circuits
have held habeas challenges to immigration proceedings are.
We find the Tenth Circuit’s opinion most persuasive. Still, we
chart our own path.
Begin with the Fourth Circuit. In O’Brien v. Moore, it
held the EAJA does not waive sovereign immunity to fee
awards in habeas proceedings challenging criminal detention.
395 F.3d at 508. The statute’s use of “civil action,” the Court

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thought, was ambiguous between every civil action, which
would include habeas actions, and every “wholly civil action,”
which would not. See id. at 504–06. “[B]ecause habeas actions
have both a criminal and civil nature,” it reasoned, “when a
statutory provision regulates a ‘civil action,’ we can only
conclude that it does not necessarily follow that it also
regulates a habeas proceeding.” Id. at 505–06.
We do not follow O’Brien for four reasons. First, the
decision ignored two crucial pieces of the statutory text: the
“any” that precedes “civil action” and the torts exception that
follows. Second, the decision largely neglected the deep
common–law history of habeas as a civil action. Third,
O’Brien’s reasoning does not extend to habeas challenges to
civil immigration detention. As we have noted, the Fourth
Circuit classified habeas cases as hybrids because “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.” Id. at 505. The habeas petitions before us review
immigration detention—a civil matter—so there is no
underlying criminal case whose nature they could assume.
Fourth, O’Brien acknowledged this distinction, distinguishing
cases where “the habeas corpus proceeding was filed in an
immigration context” from the challenge to criminal detention
before it. Id. at 507 (citing Sotelo-Aquije v. Slattery, 62 F.3d
54, 56, 59 (2d Cir. 1995)). By its own terms, the case has little
to say to us.
Four years ago, a divided panel of the same Court held
the EAJA does not unambiguously cover habeas challenges to
immigration detention, claiming “[t]his conclusion is required
by” O’Brien. Obando-Segura v. Garland, 999 F.3d 190, 193

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(4th Cir. 2021). The Obando-Segura Court brushed aside the
distinction between challenges to criminal detention and civil,
asserting—incorrectly—that O’Brien “did not differentiate”
between them. Id. at 194. This time, the Fourth Circuit
acknowledged that the EAJA covers “any civil action.” Id. at
196. But it disregarded “any” without weighing its
consequences: “whatever we think of the possibility that the
term ‘any’ can sufficiently disambiguate the term ‘civil action,’
that argument cannot survive O’Brien.” Id. And the Court
again failed to take account of the torts exception. So we are
not persuaded by Obando-Segura either.
Turn to the Fifth Circuit. Its brief decision in Barco v.
Witte, 65 F.4th 782 (5th Cir. 2023), cert. denied, 144 S. Ct. 553
(2024), relies on Obando-Segura and shares its flaws. Barco
also held “civil action” is ambiguous between all civil actions,
which might include habeas, and “purely civil” actions, id. at
783, which would not because of the “hybrid nature” of habeas,
id. at 785. So it, too, held the EAJA does not waive sovereign
immunity for habeas challenges to immigration detention. Id.
Like O’Brien and Obando-Segura, Barco did not analyze
whether the word “any” or the torts exclusion make a
difference. Like Obando-Segura, Barco deferred to circuit
precedent treating habeas actions as hybrids between criminal
and civil actions. And it also did so without explaining why
challenges to civil detention have any criminal component or
reckoning with the historic civil status of petitions for writs of
habeas corpus. Consequently, we find the Fifth Circuit’s
decision no more convincing than its Fourth Circuit
predecessors.
The Second and Ninth Circuits reached the same result
we do, but for reasons we decline to follow. The Ninth Circuit

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held the EAJA’s fee award provision encompassed habeas
petitions because that interpretation would advance the
statute’s purposes: providing a financial incentive for private
parties to challenge Government conduct and encouraging
litigation to improve public policy. In re Hill, 775 F.2d 1037,
1040–41 (9th Cir. 1985). The Court barely considered the text.
See id. The Second Circuit held habeas challenges to
immigration detention were EAJA “civil actions” because of
“the legislative history of the EAJA,” despite “the ambiguity
of the term ‘civil action[]’ and the indeterminacy of the existing
precedent.” Vacchio v. Ashcroft, 404 F.3d 663, 669–72 (2d Cir.
2005). Unlike these courts, we stick to the text and context read
against the backdrop of our legal history.
We have found the Tenth Circuit’s recent decision,
Daley v. Ceja, 158 F.4th 1152 (10th Cir. 2025), illuminating.
As do we, that Court held the EAJA waives federal sovereign
immunity to fee awards for habeas challenges to immigration
detention because “any civil action” unambiguously
encompasses those actions. See id. at 1155, 1162, 1166. And
the Court relied, in part, on an insightful evaluation of the
historic civil status of habeas actions. See id. at 1157–60. But
we part ways in one analytical respect. The Daley Court
considered the EAJA’s purposes. See id. at 1162–64. We do
not.
* * *
For these reasons, we hold the EAJA unambiguously
applies to habeas challenges to immigration detention under 28
U.S.C. § 2241.

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B. The District Court did not abuse its discretion in finding
the Government’s position in Abioye was not
substantially justified.
The Government detained Abioye for over 16 months
without an individualized bond hearing before he petitioned for
a writ of habeas corpus. When he filed his petition, the
Government contested his right to a hearing. He prevailed, yet
he had spent over 18 months in custody.
Under the EAJA, the Government’s position was
substantially justified only if its conduct was “justified to a
degree that could satisfy a reasonable person.” Johnson v.
Gonzales, 416 F.3d 205, 210 (3d Cir. 2005) (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). The Government bears
the burden of proving its position was justified. Hanover
Potato Prods., Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir.
1993). “To satisfy this burden and defeat a prevailing party’s
application for fees, the government must . . . demonstrat[e]
‘(1) a reasonable basis in truth for the facts alleged; (2) a
reasonable basis in law for the theory it propounded; and (3) a
reasonable connection between the facts alleged and the legal
theory advanced.’” Cruz, 630 F.3d at 324 (quoting Morgan v.
Perry, 142 F.3d 670, 684 (3d Cir. 1998)). “[I]n immigration
cases, the Government must meet the substantially justified test
twice”: once for its underlying conduct and once for its
decisions in the ensuing litigation about that conduct. Johnson,
416 F.3d at 210. We do not assume the position of the
Government was not substantially justified simply because it
lost. William v. Astrue, 600 F.3d 299, 302 (3d Cir. 2009).
8 U.S.C. § 1226(c) requires the Government to detain
immigrants with certain criminal convictions pending removal

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without bond hearings. German Santos, 965 F.3d at 206. The
Supreme Court has held § 1226(c) is not facially
unconstitutional. Demore v. Kim, 538 U.S. 510, 531 (2003).
But the Court “did so because it understood that the detention
would last only for a ‘very limited time,’” German Santos, 965
F.3d at 208 (quoting Demore, 538 U.S. at 529 n.12)—“roughly
a month and a half in the vast majority of cases” and “about
five months” if the immigrant appealed removal, Demore, 538
U.S. at 530. Accordingly, immigrants detained under § 1226(c)
may bring as-applied challenges to the constitutionality of their
detentions. German Santos, 965 F.3d at 209. The longer they
are detained without bond hearings, the more likely their
detention abridges the liberty secured by the Due Process
Clause. See id. at 209–10; Demore, 538 U.S. at 532 (Kennedy,
J., concurring). “When detention becomes unreasonable, the
Due Process Clause demands a hearing.” German Santos, 965
F.3d at 210 (cleaned up).
We have identified four “nonexhaustive” factors
governing when detention is unreasonable: the length of
detention, the likelihood it will continue, the reasons for delay,
and how confinement conditions compare to criminal
punishment. Id. at 211–12. “The most important factor is the
duration of detention.” Id.
The Government had no reasonable basis in law for
contesting Abioye’s petition for a bond hearing after over 16
months in detention without one. We have spoken clearly:
“Detention becomes more and more suspect after five months.”
Id. (cleaned up). To be sure, we have declined to impose a per
se rule that any detention longer than a certain duration is
unreasonable; the precise time may vary case to case. Id.
Nevertheless, we have held “detention became unreasonable

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sometime between six months and one year” after it began. Id.
(citing Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d
469 (3d Cir. 2015), abrogated in part on other grounds by
Jennings v. Rodriguez, 583 U.S. 281 (2018)). Nothing in the
facts here gave the Government a reasonable basis for arguing
against a bond hearing after roughly double that length of
time—and more than triple the length of time the Supreme
Court assumed in Demore and we emphasized in German
Santos. That is especially true because Abioye’s detention was
likely to continue much longer because of his appeal to the
Fourth Circuit. See id. at 212 (finding second factor “strongly
supports a finding of unreasonableness” when detainee has
pending appeal). That appeal continues to this day.
To be sure, the Government could reasonably have
thought the third and fourth factors did not weigh against its
position. The reasons for delay favored neither side. Although
Abioye’s appeal of the order of his removal prolonged his
detention, we do “not hold an alien’s good-faith challenge to
his removal against him, even if his appeals or applications for
relief have drawn out the proceedings.” Id. at 211. Likewise,
although the Government’s incorrect opposition to Abioye’s
petition for a bond hearing compounded the delay, we do not
“hold the agency’s legal errors against the Government, unless
there is evidence of carelessness or bad faith.” Id.
The conditions of Abioye’s confinement did not clarify
the matter either. On one hand, as the District Court noted, the
conditions were not as obviously penal as those we held against
the Government in German Santos. There, the detainee was
held alongside convicted criminals. Id. at 212–13. Here,
Abioye was held with other immigration detainees. The
detainee in German Santos was confined to his cell for 23

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hours a day. Id. at 213. Abioye was afforded several hours of
recreation, and the rest of his day was spent in his “pod”—a
group of cells—rather than just his own cell. On the other hand,
District Courts in our Circuit have recognized the conditions at
Moshannon are penal in nature. See Grigoryan v. Jamison, No.
25-1389, 2025 WL 1257693, at *5 (E.D. Pa. Apr. 30, 2025)
(collecting cases).8 And Abioye attested the conditions he
experienced there were worse than those he experienced in
federal criminal custody. For our purposes, what matters is that
even if this factor weighed against detaining Abioye any longer
without a hearing, it did not weigh so heavily in that direction
that the Government had no reasonable basis for contesting it.
With that said, the Government also had no reasonable
basis in law for thinking any ambivalence on the third and
fourth factors could outweigh its decisive loss on the first two.
Our conclusion remains that the District Court did not abuse its
discretion in finding the Government was not substantially
justified in detaining Abioye for so long, with no end on the
horizon, in the absence of any distinctive reason to deny him a
hearing. It should have known better.
The Government advances several counterarguments.
None proves sound. The first is that the Supreme Court might
one day endorse the Government’s position that indefinite
detention without a bond hearing under § 1226(c) is
constitutional, full stop. Perhaps it will. In the meantime, we
have held that indefinite detention without a bond hearing can
violate the Due Process Clause and that as-applied challenges
8 We have said the same about the conditions at Pike County
Correctional Facility, where Abioye spent a few of his months
in confinement. See German Santos, 965 F.3d at 212–13.

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raising that claim are available. German Santos, 965 F.3d at
209. And this appeal is not a proper vehicle for revisiting that
question because the Government did not appeal the District
Court’s determination that the statute was unconstitutional as
applied to Abioye—only that Court’s subsequent award of
fees.
Second, the Government claims the District Court
abused its discretion by applying a brightline rule that any
detention longer than one year is unreasonable. But the Court
did not do that. Instead, it correctly treated the reasonableness
of detention as a fact-sensitive inquiry. Even if it had applied a
brightline rule, “we may affirm on any ground supported by the
record . . . even if the [D]istrict [C]ourt overlooked it or it
involves an attack on the [D]istrict [C]ourt’s reasoning.” See
Laurel Gardens, LLC v. Mckenna, 948 F.3d 105, 116 (3d Cir.
2020). What’s more, for all the Government’s insistence that
the length of detention must be assessed case by case, it offers
no special reason to think more than 16 months of detention
here—18 months by the time of Abioye’s release—was
reasonable in this case.
Third, the Government asserts the District Court abused
its discretion because the decision awarding fees did not revisit
the German Santos analysis from the merits decision that
Abioye’s detention was unreasonable. However, the Court had
no obligation to recap its ruling. See Morgan v. Perry, 142 F.3d
670, 683 (3d Cir. 1998) (noting, without issue, that the District
Court’s factual findings were recited in the merits decision but
not the fee decision).
Fourth, the Government claims the length of detention
could not support a finding its position was not substantially

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justified because the District Court described this factor as “a
close call” when ruling on the merits of the habeas petition.
Abioye Opening Br. 47–49 (quoting Abioye App’x 29). The
Court violated the law of the case doctrine, as the Government
sees it, by subsequently finding it had no reasonable basis for
detaining Abioye that long. It offers no authority for the
proposition that the Court’s offhand remark is subject to the
law of the case doctrine. Even if it were, we could affirm on
the ground that the record indicates the length of detention was
not, in fact, “a close call”—because it was not.
Fifth, the Government argues its position was
substantially justified because the District Court did not hold
every German Santos factor cut against detention: the Court
found the first two weighed in favor of Abioye, but the third
was neutral and the fourth favored the Government. However,
we have never held that the Government’s position is
substantially justified just because a single factor weighs in its
favor—and that argument is particularly implausible where, as
here, the most important factor (duration) weighed against the
Government and the second factor “strongly support[ed]” the
same conclusion. German Santos, 965 F.3d at 212.
In sum, the District Court did not abuse its discretion in
determining the Government failed to prove it was
substantially justified in resisting Abioye’s petition for an
individualized bond hearing after detaining him for over 16
months without one, with no end to his detention then in sight.
* * *
The EAJA authorizes an award of attorneys’ fees and
costs to the prevailing party “in any civil action (other than

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cases sounding in tort)” brought by or against the United States
if the Government’s position was not “substantially justified.”
28 U.S.C. § 2412(d)(1)(A). We hold this provision clearly
covers petitions for writs of habeas corpus from immigration
detention under 28 U.S.C. § 2241, and so it waives federal
sovereign immunity to the fee awards issued here. Our
rationale: Habeas actions are civil actions. They have been
since before our Nation’s Founding. As the Supreme Court and
our Court have recognized, the plain and technical meanings
of “civil action” encompass them. Even if “civil action” were
ambiguous because it does not always cover habeas
proceedings, “any civil action (other than cases sounding in
tort)” is as clear as can be. “Any” extends coverage to all civil
actions, no matter the type. And by expressly excluding torts,
Congress ruled out any implicit exclusions.
We also hold the District Court did not abuse its
discretion in finding the Government’s position in Abioye was
not substantially justified. After detaining Abioye for over 16
months, with reason to think he would remain in custody for
months or years to come, the Government had no reasonable
basis in law for fighting to deny him an individualized bond
hearing.
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

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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.

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