FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT XUE LU; JIE HAO, Nos. 17-55040 Plaintiffs-Appellees/ 17-55087 Cross-Appellants, D.C. No. v. 2:01-cv-01758- CBM-EX UNITED STATES OF AMERICA, Defendant-Appellant/ OPINION Cross-Appellee. Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding Argued and Submitted October 9, 2018 Pasadena, California Filed April 17, 2019 Before: Sandra S. Ikuta and John B. Owens, Circuit Judges, and Haywood S. Gilliam, Jr.,* District Judge. Opinion by Judge Ikuta * The Honorable Haywood S. Gilliam, Jr., United States District Judge for the Northern District of California, sitting by designation. 2 LU V. UNITED STATES SUMMARY** Equal Access to Justice Act / Attorneys’ Fees The panel vacated the district court’s award of attorneys’ fees under the Equal Access to Justice Act (“EAJA”), and remanded. The panel held that because the district court did not have the benefit of Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017), when it issued an award of attorneys’ fees, it failed to apply the appropriate legal framework. The panel further held that it could not determine whether the court’s error was harmless, and the panel vacated the award and remanded to allow the district court to reconsider its fee award under the Goodyear standard. On remand, Goodyear’s causation standard requires the district court to identify those expenses that the plaintiffs would not have incurred but for the specific conduct that abused the judicial process, or to determine that the government’s conduct so permeated all or a portion of the suit that “all fees in the litigation, or a phase of it, meet the applicable test: They would not have been incurred except for the misconduct.” 137 S. Ct. at 1188. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LU V. UNITED STATES 3 COUNSEL Karen Schoen (argued) and Charles W. Scarborough, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Defendant-Appellant/Cross- Appellee. V. James DeSimone (argued), V. James DeSimone Law, Marina del Ray, California; Douglas Grant Ingraham, Law Offices of Douglas G. Ingraham, Santa Monica, California; Colleen M. Mullen and Michael D. Seplow, Schonbrun Seplow Harris & Hoffman LLP, Los Angeles, California; for Plaintiffs-Appellees/Cross-Appellants. OPINION IKUTA, Circuit Judge: The Equal Access to Justice Act, 28 U.S.C. § 2412(b), waives the government’s sovereign immunity for the imposition of attorneys’ fees “to the same extent that any other party would be liable under the common law.” The district court exercised its common law authority to award attorneys’ fees to the plaintiffs under this section. But because the district court did not have the benefit of Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017), when it issued the award, it failed to apply the appropriate legal framework. Because we cannot determine whether the court’s error was harmless, we vacate the award and remand to allow the ...
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