process the field or here overlooks this crucial distinction between egypt subsection b and a just subsection d a few shifting provision in awarding fees for virtually all the work plaintiffs counsel performed in this case the district court effectively allowed plaintiffs to make an end run around the exclusion of torts cases from ija subsection d and the norm that attorneys fees typically come from the judgment and tort cases in particular the award violates three fundamental principles first the proper causation standard was not applied the supreme court made clear in goodyear that a but for cause ation standard applies here however the award includes fees that would have been incurred even in the absence of the bad faith conduct second substantial portion of a few award was improperly based solely on pre litigation conduct unrelated to the conduct of the litigation itself and third there was no basis to award fees in the prior appeal and in the few proceedings on remand because  government did not act in bad faith in either of those phases of the litigation it unless the court wants to start someplace else i thought maybe we'd start with with goodyear and the causation standard i think is as plaintiff's own brief and the declaration that they submitted to the district court make clear the district court awarded fees for work that would have been formed even in the absence of the bad faith conduct and we went through three examples in our brief and i think they should be fairly obvious without having to parse through each entry in the billing records that the book for causation standard was not applied i think in the first the feel word includes work performed for lou even though the three instances of bad faith related solely to plaintiffs how as plaintiffs explain a lot of the work overlap between the two plaintiffs counsel said that they excluded work performed soley for lou but they left in work that overlapped between the two plaintiffs but because the three instances of bad faith related solely to how i mean to the extent the work was also performed for lou it could not have been incurred solely because of the bad faith conduct so posing counsel applicable to to the government and so in a sense it basically waves of subsection b waves the government sovereign immunity and holds the government to the same standard and allows district courts to exercise their inherent authority to award bad f the same extent that they would in private litigation and so i think so i think it should be clear on that basis that good you're still good your applies and the fact that good your was more recently decided also does not matter because it's well established that a case like goodyear applies to two cases still open on direct review which which this case obviously still   paraphrasing so i don't have the exact language in front of me but i think it the court viewed it as sort of a sordid scheme right from the very beginning and that the sort of all of the conduct from from the very beginning of the case once once the sort of the claim arose  there was bad faith conduct and so there what good you're recognized was that the court in chambers was still applying a but for standard it was just that that all of the fees because of the bad faith from the inception of the case all of the all of the fees were warranted but that's not the sort of case we have here this isn't a case of defending the indefensible as plaintiffs suggest i mean there's no dispute that powers conduct was reprehensible and in fact the government criminally prosecuted him but that does not automatically make the united states vicariously liable any time that an employee miss misbehaves whether that's criminal criminally or not and here the united states had good faith defenses as to why it should not be liable for p misconduct one of those arguments for example was that the conduct was outside the scope of his employment another argument was that the intentional torts exception plaintiffs claims and the prior panel expressly held that that was not made in bad faith and so i think here the government had good faith defenses that united states should not be liable and the government wasn't was entitled to make those and so it's it's should only be the fees incurred solely because of the three occurred outside the courtroom or outside of litigation context how should we deal with well i think those two instances of what we call pre litigation bad faith conduct cannot be the basis for of for a few award here those had no bearing on the litigation itself and the purpose of a of a bad faith feel bored is to say in conduct that abuses the judicial process and awarding fees for that conduct for which the plaintiffs already received damages on the merits would go beyond the legal damages available and effectively become an award of punitive damages which exceeds the district courts inherent authority to sanction conduct and also violates the bar on punitive damages in the federal years of that delay and so to the extent that's part of her the underlying substantive claim that was part of her damages it's not appropriate to award fees on top of that and i think rodriguez and other cases even association of flight attendants make that clear the a court can award fees for conduct related to the litigation so in response to a substantive claim whether that's before before the litigation or during the litigation but in response to a substantive claim what a court can't do though is award fees for conduct underlying the substantive claim but that's that's exactly the situation that we have here because both of those instances of pre litigation bad faith both of those were so factored into the appeal but i'm just curious under your reading of goodyear if the plaintiffs in this case are trying to in a sense defend the district court's judgment and they have to incur fees to appeal this to defend the appeal this court under good years but for test would they be able to obtain fees for defending the district court judge in this case no your honor and i think the supreme court made that clear in our in gallon and this court has extended their reasoning applying the reasoning of critter go this court also held that you don't get so called fees on fees right and so it's and it's all this sort of the same the same idea wording the james the simone on behalf of plaintiffs she way that means a hell may please the court in this case the district court did rigorously follow what the ninth circuit directed to do by tracing all of the fees to that were awarded to the bad faith conduct of the united states of america and when we look at the law of the case doctrine the ninth circuit in its previous decision college way lou to since this is the third time arguing this case in front of the ninth circuit into a week two directed the court to fight to to find what fees were traceable to the different instances of bad faith including the pre litigation bad faith and this is key because that pre litigation bad faith on the part of the united states of america really influenced the entire that occasion and if you look at the briefing of the united states of america their principal brief it's almost  admitted by them because in the initial stages of the case if you look at for instance my time records from two thousand to the year two thousand and six rate we defended a number of successive motions to dismiss and the premise of those motions mean that all of the time that we spent to prove those damages so there it should not be compensable because it was related to the bad faith and we had to go back to gear for a moment opposing counsel's as good year was decided while this case is pending on appeal so we're bound to apply it and you argue at no we should look at the prior panel decision so which which one to this pending case or the prior decision before here i think the best view is to harmonize good year with the a j because in a good year of course it just looks at the discovery section so by definition you couldn't looked you couldn't be looking at pretty litigation that faith for a discovery sanction because sky every hasn't started yet but when we look at the chambers case which is still good lot of course is united states opinion and we harmonized chambers wit just as here the kind of so that year characterizes chambers and said the whole the whole process of litigation was part of a sordid scheme to do do the wrong thing to do the other view was the government's defense here part of a sordid scheme to deprive the plaintiffs i won't use the word sordid but clearly the government has tried tried to deprive plaintiffs of compensation remember these right but they raise defen said were not themselves and at a rate i'm not sure why that makes it right raising a defense to a claim is not a sordid scheme but but but but remember in chambers the entirety of the fees were awarded just as the district court did in the good year kate which of course was overturned by the united states supreme court this case presents a very different question to the panel in this case you had judge marshall who through our declaration and through going through each and every one of our type time records painstakingly i mean she decreased the amount of fees by over five hundred hours two hundred thousand dollars worth of time when it did not relate to each of the instances of the three instances of bad faith which were upheld by the ninth circuit two so well yes chambers has the language and it could be distinguished from goodyear that distinction does not apply to the case because judge marshall did segregate separate out the fees that were related soley to a loon some of the other their argument on appeal dealt with the consent argument and the damages were awarded for the assault and battery and again on the initial motion to dismiss it was all of the assault and battery in the sexual nature that conduct meant that we could recover nothing and they made that organ if you look at the closing arguments of opposing counsel that we that we put in the second set supplemental excerpts of record they continued to make that argument not only in the trial this matter but in the second pill so in that way going to the why we should be able to recover fees on the appeal they were still making the arguments that one related to that face because it without the assault if you didn't have bad front of the in front of the judiciary here those affirmative defenses were what we had to fight against every step of the way for these eighteen years so in that way it does satisfy the good year but for think you have to read the year in light of the fact that you've got three litigation bad faith here that has to be taken into consideration so it doesn't fit nicely into into that but in terms of what this court should be looking at inge way lou to the ninth circuit directed judge marshall to look to prove that a geisha that face kind of the defense would like to argue that you can't possibly look at that here because it didn't affect the litigation at all but that's just turning a blind eye to ards what the litigation actually dealt with i mean when we were trying this case in front of judge marshall their argument and the physical touching but when you look at the damages of long standing damages the jailhouse suffered being separated from her child her child was in china for seven years five or seven  compensable here and so that separation from her child when she wrote the letter to the judge she was handling the criminal case and put forth of how horrible this was to be separate from a child that's where the damages came from so to do was plaintiffs to prove our clients to have a g s it permeated every aspect of that and so when we go back to the standard here the standard has to be whether judge marshall abused her discretion whether her to intervene and stop that from happening and then if you look at it if you get if you look at their their principal brief when when we go through both the trial and the second appeal the primary arguments are with respect to j how consent which the court said the court of appeal agreed with judge marshall's opinion that that was meritless and offensive so while they didn't specifically say we too would find this in bad faith and they said maybe somebody could come to a different conclusion they still found it to be meritless and offensive with respect to the lettering they said the government has given no reason whatsoever as to why they delayed j hause asylum application for five years pending the criminal trial of thomas pearl so again if the government gives no reason for that then that would seem like it's frivolous in order to market somehow that it should not be part of the damages and so again the bad faith of the united states infected is this this case through the through the court of appeal and even though the employer has not authorized to commit these crimes what were those crimes the sexual assault that's where they were getting out of course and scope of employment because there's a long line i mean normally when someone takes in and uses the trappings of a job such as here approving asylum application and does it if they assault someone had hit them with a hammer there's a case your case then it's within the course and scope of employment but there's a line of california law that draws the line merriam says police officers can be held liable if they sexually assault someone because of their badge and power but everyone else you would have to prove negligence on the part of the employer to hold them liable and that's where the government was using the sexual nature of powers interaction with shay how which only came after the money was exchanged or the money was talked about then he tried to see if he could do more with her frankly and they were using that as an out and we had to defend that through years of successive motions to dismiss and then getting a published appellate decision where the court said no the dissent focuses on torts for instance a gate against employees engaging in sexual misconduct this is a page nine fifty of one of the ports which the plaintiffs can be compensated for are the infliction of emotional distress and interference with civil rights and the court emphasized that these are injuries in causes of action that were distinct from the battery if you didn't have the assault if you didn't have the bad faith you wouldn't have the battery and he wouldn't have the affirmative defense so we satisfy the but for requirement of good here so i know we took the position in the brief that goodyear doesn't apply at all i mean in print in preparing for this argument i think is the better view is that yes good your did come down judge marshall didn't have the benefit of applying the good your decision because he came down after she rendered her decision on the attorney's fees here but what you do have is in terms of the evidence that's before this court that we do satisfy this but for  were directly related to bad faith here and i think that if you look at both chambers where the court did uphold an award for conduct that was outside litigation you harmonize that with goodyear that's how you get to a firm and of judge marshall's decision and that she was in clearly erroneous in that making decision and i also think that if you go through for instance my time records which are from twenty four thirty two for example the excerpts of the record and you go from the first part of the piece you'll see all the time spent on the legal pleadings yesterday conversations like life here or there if th it's true the prior panel upheld the district court's finding that the consent argument was made in bad faith upheld that is not clearly erroneous but the panel also went out of its way to say that a finding of bad faith was not compelled and i don't think it's clear that th prior panel thought that it was bad faith for the government to sort of renew that consent argument and that the prior panel thought fees on appeal were warranted for that portion but i think even for the sake of argument if the if the think that that the government was pursuing that consent argument in bad faith that's only a small portion of the appeal there were there were two separate parts to the appeal the appeal of them the merits judgment and the appeal of the field warden as as we discussed in response to judge owens question the first time i was up here you know the fees incurred in defending or the fees incurred it in the context of the appeal of the few award those are not those cannot properly be included in a  a party generally must make a request for fees on appeal to this court in the first instance and then this court can decide whether to send it to the district court or to handle the few request on its own in an r g c v winter this court said that in the context of fees under aegis subsection d the few shifting provision that a party can go to a district court in the first instance but the court hasn't addressed what happens when you're seeking fees on appeal in the context of ija subsection b and i think that the aircrews are very different because in under ija subsection d fees are shifted generally for the entirety of the of the of litigation there's a sort of a threshold fields ability determination made and then the presumption is that you get fees for the entire course of litigation as we've been discussing under it just subsection b fees are only awarded for discrete portions of the litigation those fees incurred because of the specific instances of bad faith conduct and so it seems just given the nature of the inquiry that would it would be more appropriate for the court of appeals to make that field ability determination itself and decide whether there was in fact bad faith conduct in its proceedings and whether a few award was warranted to sanction that bad faith conduct and i think here you know i think this sort of illustrates the problem because you know that it's one thing for the panel to uphold as not clearly erroneous the district court's finding was in bad faith and to give the district court discretion to award fees to sanction that conduct in as part of its sort of policing or management of its own proceedings but it's another thing to then say that that necessarily requires that that fees  sake of argument if that consent argument was made in bad faith that was only a small portion of the peal again with respect to the challenge to the fia war that there is no basis to award fees for that portion of the peel and then with respect to the merits the government still made other arguments we continued to make the intentional torts argument which the panel expressly reversed as not being in bad faith and there were other arguments on appeal as well and so i think only a small portion if any of the fees on appeal would be warranted because of that consent argument but there was no effort by the district court or plaintiffs in tracing fees in the signing codes to strip out those other portions of the appeal and i think if i understood plaintiff's coun correctly i think they were also suggesting that in upholding the findings of premeditation bad faith the prior panel was directing the district court to award fees on that basis and i don't think the prior panel's opinion can can be read that way because i think any such holding would have been inconsistent with rodriguez an association of flight attendants and sort of the fundamental principle that bad faith few words are meant to say action abuses of the judicial process not the underlying conduct and so i think you know to the extent you're looking at any fees incurred before two thousand and eleven which is when the consent argued when the government first made the consent argument you know any fees before that date were incurred solely because of those two instances