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SU v. BOWERS

No. 22-15378.

85 F.4th 530 (2023)

Julie A. SU, Acting Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. Brian J. BOWERS, an individual; Dexter C. Kubota, an individual; Bowers + Kubota Consulting, Inc., a corporation; Bowers + Kubota Consulting, Inc. Employee Stock Ownership Plan, Defendants-Appellants.

United States Court of Appeals, Ninth Circuit.

Filed October 25, 2023.

Attorney(s) appearing for the Case

David R. Johanson , I (argued), Hawkins Parnell & Young LLP, Napa, California; Douglas A. Rubel , Hawkins Parnell & Young LLP, Cary, North Carolina; William M. Harstad , Carlsmith Ball LLP, Honolulu, Hawaii; Scott I. Batterman , Clay Chapman Iwamura Pulice & Nervell, Honolulu, Hawaii; for Defendants-Appellants.

Christine D. Han (argued), Attorney, Office of the Solicitor; Sarah M. Karchunas , Attorney, Plan Benefits Security Division; Jeffrey M. Hahn , Counsel for Appellate and Special Litigation; G. William Scott , Associate Solicitor for Plan Benefits Security; Seema Nanda , Solicitor of Labor; United States Department of Labor, Washington, D.C.; Jing Acosta and Elisabeth Nolte , Trial Attorneys, United States Department of Labor, Chicago, Illinois; for Plaintiff-Appellee.

Richard J. Pearl , Faegre Drinker Biddle & Reath LLP, Chicago, Illinois; Mark D. Taticchi , Faegre Drinker Biddle & Reath LLP, Philadelphia, Pennsylvania; for Amicus Curiae The ESOP Association.

Partial Concurrence and Partial Dissent by Judge Collins

OPINION

Congress enacted the Equal Access to Justice Act (EAJA) to curb abusive and costly lawsuits involving the federal government. 28 U.S.C. § 2412. The EAJA thus allows a prevailing party to seek attorneys' fees and costs from a federal agency if the agency's litigation position was not "substantially justified...

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