agree just unlawful indeed the government prosecuted him security a conviction and the sentence of imprisonment the question here is therefore not whether any of his conduct should be condoned rather the question is whether the federal  recover the damages they seek there are three specific points that i'd like to address here this morning first whether the district court hears of this court prior ruling that the plaintiff could proceed on claims of injury distinct from that caused by the unlawful thus distinguished between injuries resulting from the solicitation injuries resulting from the battery and made clear that only the former if proven could support recovery consistent with the f t c is limited waiver of sovereign immunity infliction e e s i think that the court did not separate out the harm that the clue talked about it well i think that the district court did not specifically separate out the harms that resulted from the physical touching but there was also used conduct and that's that's the battery but there's intentional infliction of emotional distress from flowing in from his conduct his conduct was everything that he did the conduct was everything and the district court when it made the finding that  suffered emotional distress she cited specifically to factual findings that were only about the touching that's on in her decision not on e r thirty she cited paragraph fifteen thirty seven and forty two to support her finding that there had been emotional distress those paragraphs were only about the touching so what we have here is a failure to keep separate emotional distress that resulted from the  touching so i think the district court is pretty clearly making a finding that severe emotional distress resulted from the touching and it did not decide aggregate that emotional distress from were she says the emotional distress suffered as a result of the demand for sexual favors in worry is an injury distinct from the battery yes so to the extent there is emotional distress caused by the solicitation it would be a distinct andry what i think we have here is that the court did not separate i think i think you're running uphill with regard to this argument i mean you've  distress claim so you can spend more time talking about that if you want or what i would like you to move to is to talk about the finding that the government litigated in bad faith certainly laid out our arguments on equivalence there just aren't any findings in this case here that would support an award of bad faith because there is no evidence or findings that any of the government conduct pointed to motivated by dishonest purpose or moral what the court found fault with the government's argument regarding consent i participated in the thing is that the court accurately characterized the government's argument post three man yes the government did argue that point of house consent to participate in the sting operation necessarily included consent to be subject to a and therefore barred damage and you want to repeat that argument even here yes we the the government's position is that this is well established of the matter state law consent to the bar to an intentional it and he did was cooperate with the government reported to the government agreed to the data as saying was assured that she wouldn't be tied to god in fact they didn't live up to their part of the bargain and you're saying oh well she consented to that by agreeing to cooperate with the government well so i think we have to be think that sonera rageous argument no no no i think we have to be clear on  whether she consented to being touched is not relevant to whether she consented to the basis of her claim here which is the fullest the taishan so we do think it's clear that she  solicitation which is the point of the investigation her claim is not based on the consent are not based on the touching so this court doesn't need to find that she consented to the touching in order to have her cooperating witness yeah ok and you're saying that the cooperating witness by agreeing to purchase a pay with the government goes in knowing she will be subjected to this  likely be subject to this objectionable behavior that then can't sue for can't go in for a cooperate it's can recover for that's right because we think this would i mean the consequences would be very significant for law enforcement operations i mean this is a fairly common procedure to use cooperating witnesses in this way and have their interactions record it if every one of those witnesses could then turn around and sue the government for being subject to the conduct that the investigation was designed to elicit i mean that would have a very significant chilling effect on law enforcement operations and could make undercover operations cost prohibitive so we think that that is demonstrates why this at the very least is not a bad faith argument it has support in the law it has some factual basis looking at this court's fees decision and rodriguez this court said where there is some factual basis for an argument the argument is not made it is you argue what portion of the recovery could not be the basis for what did you separate the amount how did you determine when she could be with compensated for the solicitation and when she couldn't it was more that solicitation was not the only solicit well before a point of how it was the only solicitation occurred in the course of the undercover operation is the only injuries she suffered was the time she was served as a witness that's right that's right her other meeting with powell was in the offices of the offices and she testified that there was no and she did not suffer any emotional distress from that meeting and there's no yes that's absolutely correct that's what the argument in the based on that it could be a different situation had she been exposed to conduct first and then consented she disappear i think that i have three i'd like to go to the very last point the counsel is making it judge reinhart was inquiring because it is a misstatement on finding of fact thirty which is found in the excerpt of the record twenty five m testified that she suffered severe emotional distress when she was first contacted by thomas powell on the telephone this was prior to letting her attorney know this was she this came out of the blue for this was prior to engage  interesting operation and judge marshall properly made a finding of fact in thirty one that after that phone call i'm sorry that's still and thirty after her first phone conversation with pal how experienced anxiety headaches sleeplessness and fear so the assertion that there was no harm prior to the sting operation it's made by counsel for the united states is just absolutely belied and and proven wrong but by the record i thought i would start out with that in terms of this parade of hearts that if some of them corroborated with a government then they could turn around and sue with the sting operation this is a very unique situation this is a situation which the sting operation is against an official acting in its course and scope of employment with the united states of america your normal crime is not going to be against a government official such that you're going to have liability against the united states based on the conduct of government officials so in terms of sticking with the facts of this case mr j howard should be compensated because as you as the fight in trial in front of judge marsh and she was present there was way lou his testimony was taken in hong kong in and presented as she testified in front of judge marshall she agreed to be seated with the wire and to have her interaction videotaped she didn't consent to any of the conduct him thomas powell and the most important part of this is that mr powell in the course and scope of his employment united states interfered with her right to asylum and a right to a fair adjudication of the cause of the nearly eight year delay so do we need to we may and for the court to take a look at the last portion of it the last two three years i don't believe so your honor because i think that the the the harm if you look at the at the record and the harm to to miss j how in the letter she wrote to then judge who shows how that five year old lay before the immigration proceeding started getting rolling again i think that overall the conclusion that oh yes well it took eight years for her to get asylum in that instance would not in any way diminish the damages and i would suggest  first now sixteen years with the date of the kinds of the my clients when mr ray lewis came into my office prior to anything happening with jay how it's been sixteen years so unless of pinedale of judge marshal held to be clearly erroneous i think that it would be an injustice to again reminding and cause further delay and that would include on the on the finding of bad faith your honor because you would have to show you you as a panel would have to have a definite and firm conviction that somehow judge marshall made a major mistake in the finding of bad faith and the cases cited by the united states of america in their reply brief show that you can look at the underlying kind of the government official and i'm referring specifically to the case of barry v bowen you could look at the conduct of the underlying officials involved in order to have the finding of bad things and in this instance you have in the court didn't focus on this itself honestly but you have powers conduct which can also constitute some of the i'm of the bad faith and all of the what judge marshall found that the  circumstances we're in we're in bad faith here by by the united states of america and when the when the united states of america argues in reply that they have to have mens rea or that there has to be a specific ill intent  counsel argued appear they're wrong about that what you have to have the standard is whether or not the united states of america proceed in a reckless fashion raising a frivolous argument and the consent argument was frivolous and it was that there was the consent argument for melissa mean this is such a difficult situation where you can't recover on the battery but you can on the intentional infliction of emotional distress arising out of a similar incident what happened during the operation sought some point you've got to tease that apart so the government post re man took the position that look plaintiffs haven't shown  intentional infliction motion of distrust i would submit your honor that the civil case is very instructive here because it's not as if you have to show the instable you had one meeting with the united states general where he told a family that there's that their deceased husband and brother was a crook was a felon and was going to go after the brother his doctors license and accuse him of wrongdoing and the court held that those comments were defamatory and of course were delivered and they were done with an intent to cause harm to inflict emotional distress and when you read the testimony which way lou that submitted as part of the records way was it while this trip powell was touching her that he was that he was saying if you don't like this i'm going to deny your green card so you have a situation where yes the physical touching does set up the coercion that's a necessary element of civil code fifty two point one as well as of course distinct from that the threat to deny the asylum which is not which is not exempted so in terms of the if you have under california law this is a case that was cited in the reply because the ash case if you have two concurrent tort acting to cause a single harm the fact that both parties are fully liable for the harm it's caused and when you really look at the testimony how yes in the moment of course no female is going to want to be touched by a strange man was that type of power over her and that's very deleterious but if you look at the long lasting harm here to each of my clients the one lasting harm was that he got into their apartment how was he there by virtue of his power as an asylum officer what was he abusing that power as an asylum officer to approve or their asylum and what was so offensive what lasted with a why the harm level what you're really going to is the merits and obviously you prevailed that at trial and the record some supports that what i'm focusing on is the court contrary to the ninth circuit ruling and i'm not sure that i see that in the record where the government argue contrary to the scope of the remember because the you're out of the court did not only argue that closing arguments are the counsel for the united states  all only argue in their closing argument that they should somehow have less damages because of that they argue that you cannot recover at all on these causes of action because battery was involved and once the ninth circuit ruled in just way lou one that the injury from the denial of a violation of fifty two point one and intentional infliction of emotional distress was injury distinct from the battery making that argument was completely frivolous they were arguing that my clients should not recover anything at all in the end they're close in their closing argument and you know i was the trial lawyer in this case and so that particular argument was frivolous now what it was the case to say just because the government makes arguments that are not frivolous ok so maybe theoretically you could argue that there should be a discount but what i mean other words it's a misunderstanding of basic california tort law when you look at the substantial factor test where a substantial when you look at this itself for something to be a substantial factor it doesn't have to be the only cause of the harm and yet they were arguing in the face of prior precedent and clear california law that somehow they should be absolved of damages for the interference with my client's rights because there was also a battery and host and that is offensive your honor why should the united states get a pass because not only did he deny them their rights to asylum and try to predicate their being granted asylum which gets them a green card i mean that's or to get to enjoy the freedoms of the united states of america if they get that it that the cylon officer approves it's done they have their green card and they could station yesterday an appeal process if there's denial but that was so important to each of them so why should the united states get some sort of discount or pass because mr powell was also engaged in the battery at the times at the time that he was in intentionally inflicting emotional distress on these individuals and denying them their rights and violating fifty says which says that you can have an intervening factor overcoming the initial harm with an intentional toward your maybe some doubt about a california law but when you have an intentional tort it has to be the intervening event has to be so far outside what is contemplated that it would be unfair to hold the initial tortfeasor liable but here what were the harms to the clients the harm to mr bush a hell of course was that she didn't have her asylum application  point one in the intentional infliction of emotional distress and states that she's that the harm that she's causing relates relates to those violations it's presumed this is a runaway jury award for what happened here i states has never said identified an engine really that resulted from the battery that was distinct from the interference with my client's right this isn't a case where there was a battery and someone suffered a broken arm say well the broken arms in the battery hold that that didn't happen here and without them being able to show that lee and he set out this is where the discount should have been there is no basis for judge marshall to do so and i think that if you look at the totality of the circumstances right and what judge marshall is really is really looking at is not only have to look at the technical legal arguments that are being made by the defense you've got to look at the total talent here the circumstances of the underlying conduct of the client they represent i mean they're representing through the united states of america an individual baby no is guilty of interfering with their rights to an asylum and there and then inflicting emotional distress he was criminally convicted both julie lewis testified in the criminal case against  so when you look at the totality of the circumstances even if you could question one or two when reasonable minds might disagree on one or two with the findings of bad faith this panel would have to have a firm conviction that judge marshall heard all the evidence was clearly erroneous in that finding a bad faith and i would submit to you that the case law holds you could take strongly into account pauwels underline reprehensible offensive conduct that occurred in the year two thousand and we are now sixteen years later and what the equal access to justice act does your honor is it levels the playing field for a firm like ours who litigated this case for sixteen to there's a difference really in the case well your honor there's a different standard in order to in order for us to get our fees at the market rate there would have to be a showing of bad faith in order to get the fees under the equal access to justice act for the initial conduct that the at the lower level you would just have to show that the united states took a position which was not justified and in that instance your honor i think we can look at powells conduct which was prior to that june of two thousand thank you there are a few things i would like to address i'll try and move through them quickly counsel began by pointing to finding that the district court made that how was had some anxiety before the meeting that could not have been emotional distress that was caused by the fullest potations she may have been anxious before the meeting but the solicitation did not happen until the meeting and so it's totally unclear why she should be awarded damages could not have any person whose conduct was the subject of the the claim here so we don't think that you can trace all the fees to that conduct and the litigation conduct that the court identified began the second asylum officer her decision to earn that asylum officers decision to refer the case to immigration court so that couldn't have anything to do with power conduct  e district court itself and your bow both suspended their own proceedings so this was not just how was immigration proceedings before i and that's that were postponed the district court entered a stay pending something similar or specifically attributable to pow these are independent discretionary decisions of other government officers and finally i would just like to underline the point that when was making with respect to the government's arguments on remand that those were they may have been incorrect but they were good faith attempt to apply the line set out in the first appeal which was decided on a motion entitled to prove that but that still leaves open the possibility that they may not have proven that things were actually separate helpful sites say but how but that was also in a most of this mess and the court didn't say anything and say about