A Right You Cannot Afford to Enforce Is a Strange Kind of Right.

One detention, one successful petition, one unpaid bill

Montoya Palacios is a Salvadoran national who had received protection from removal to El Salvador. According to his Supreme Court petition, immigration authorities later detained him. He filed a habeas petition in federal court in Maryland and obtained his release. The government did not appeal that result.

His lawyers then sought nearly $9,000 under the Equal Access to Justice Act, commonly called EAJA. Congress enacted EAJA to permit eligible prevailing parties to recover fees in certain cases against the United States. The statute applies to a prevailing party in a civil action unless the government's position was substantially justified or special circumstances would make an award unjust.

The district court denied the request. The Fourth Circuit affirmed, not because Montoya Palacios had failed to prevail, and not because the requested hours had already been found unreasonable. It held that a habeas proceeding challenging immigration detention is not a civil action within EAJA's fee provision. The Supreme Court granted review on June 29, 2026. The Court's docket sets the petitioner's merits brief for August 31 and the government's brief for October 23.

That sequence matters. The Court is not deciding whether Montoya Palacios should have been released. He already obtained that relief. It is deciding whether someone in his position may even enter the statutory process for seeking fees.

The legal question is narrower than the consequence

The relevant words are almost aggressively ordinary: ‘any civil action.’ Immigration detention is civil, not criminal. Habeas proceedings have repeatedly been described as civil in character. The petition therefore argues that the text naturally reaches a habeas action contesting civil detention, particularly because Congress expressly excluded tort cases but did not exclude habeas cases.

The government's response begins from a different premise. EAJA waives the federal government's sovereign immunity from fee awards. Waivers of sovereign immunity must be stated unambiguously. Habeas, the government argues, is a hybrid proceeding with features that do not fit neatly inside the ordinary civil-action category. Calling habeas civil for one purpose does not necessarily resolve its status under a statute that authorizes payment from the Treasury.

Neither position is frivolous. The petitioner's argument has textual simplicity and a practical objection to an unexplained exclusion. The government's argument invokes a settled clear-statement rule and the historically unusual nature of habeas. The justices will have to decide whether ‘any civil action’ is clear enough in this setting, not whether fee-shifting is generally a good idea.

A federal right should not change at the circuit line

The disagreement is already producing different answers in different parts of the country. The petition describes a split in which the Second, Third, and Tenth Circuits treat these habeas matters as covered civil actions, while the Fourth and Fifth Circuits do not. The precise doctrinal paths vary, but the operational result is stark.

A person detained in one circuit may seek fees after prevailing. A similarly situated person detained elsewhere may not. The underlying federal detention authority and federal fee statute are the same. Geography changes the economics of enforcement.

Circuit splits are not unusual. They are one reason the Supreme Court takes cases. This one, however, exposes an uncomfortable feature of rights litigation. A legal rule can exist everywhere while the practical ability to invoke it varies substantially by courthouse. The right is national. The market for lawyers willing and able to enforce it is local.

Winning would not guarantee a check

The discussion needs one important limit. If the Supreme Court holds that immigration habeas proceedings are civil actions under EAJA, successful petitioners would not automatically recover every dollar they request.

The applicant still must satisfy the statute. The person must be a prevailing party and meet applicable eligibility requirements. The government can avoid a fee award by showing that its position was substantially justified. A court may deny fees when special circumstances would make an award unjust. The amount remains subject to statutory and judicial limits.

That distinction separates eligibility from entitlement. Montoya Palacios asks whether the courthouse door to fee consideration is open. What happens after entry depends on the record. Describing the case as a demand that taxpayers always fund immigration litigation would overstate it. So would describing EAJA as a complete answer to the cost of representation.

The economics of saying yes

Legal doctrine often speaks as though representation appears by operation of principle. It does not. A lawyer has to investigate the detention, identify a viable claim, prepare the petition, litigate against the federal government, and absorb the risk that the work will never be paid.

Some lawyers and organizations take those cases without expectation of payment. That work is indispensable. It is also finite. A fee-shifting statute changes the calculation by making some successful cases economically sustainable. It can allow counsel to accept matters that the detained person could never fund at market rates.

This is not cynical. It is the ordinary reality of professional capacity. Hours devoted to one matter cannot be devoted to another. Rent, staff, insurance, research systems, and payroll do not disappear because a claim is important. A legal system that relies on private lawyers to vindicate public rights must eventually confront how that work is financed.

The hardest cases are not always the ones with weak legal claims. They are often the ones with strong claims and no viable payment mechanism. When the remedy is release rather than damages, there may be no recovery from which counsel can be paid. Fee eligibility can be the difference between a claim that exists in a reporter and a claim someone can actually bring.

The government's concern is not imaginary

There is a serious institutional reason courts read waivers of sovereign immunity carefully. Congress controls federal spending. Judges should not extend fee liability merely because reimbursement seems equitable in a sympathetic case. If the statutory language does not clearly authorize an award, the constitutional structure leaves the correction to Congress.

There is also a difference between condemning unlawful government conduct and deciding whether the government's litigating position lacked substantial justification. EAJA preserves that distinction. Agencies can lose a difficult legal dispute without automatically owing the other side's fees.

The petitioner's stronger answer is that careful construction is not permission to make ordinary statutory words artificially narrow. Congress said ‘any civil action,’ then identified an express exception. If a civil habeas action sits outside the provision, the Court must explain why the historical character of the writ defeats the breadth Congress chose.

The case will therefore test two judicial instincts that frequently collide: insist that Congress speak clearly before public money is spent, and give enacted language its ordinary reach even when the fiscal consequences are real.

What this case will not solve

Even a broad ruling for Montoya Palacios would not create a general right to appointed counsel in civil immigration detention cases. It would not pay lawyers at the beginning of a matter. It would not remove eligibility limits, the substantial-justification defense, litigation delay, or the risk of losing. And it would not address every barrier faced by a detained person trying to find counsel, communicate from custody, gather evidence, or understand rapidly changing law.

Fee-shifting is a back-end mechanism. Representation requires front-end capacity. A small firm still needs the financial ability to carry the case. A nonprofit still needs staff. A detained client still needs a way to reach someone. A later fee petition does not erase those constraints.

That is why the case deserves neither dismissal as a technical dispute nor celebration as a complete access-to-justice solution. It is one structural question with real but bounded consequences.

A right needs an enforcement market

Lawyers are trained to distinguish the existence of a right from the availability of a remedy. We should add a third category: the practical availability of someone capable of pursuing that remedy.

A person can possess a constitutional or statutory claim, know which court has jurisdiction, and still remain unable to enforce it because the work is too expensive and the prospective relief does not finance the representation. That is not merely a consumer problem. It is a design problem in the legal system.

Montoya Palacios will require the Supreme Court to interpret a few words in a federal statute. The answer may influence who bears the cost when the government detains someone unlawfully and a lawyer succeeds in obtaining release. More broadly, the case forces a question the profession often avoids: What is a right worth when enforcing it requires work that nobody can afford to perform?

General educational information only. This article discusses a pending Supreme Court case and does not provide immigration or legal advice.