                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MARIA RAQUEL RODRIGUEZ;                  
ROBERTO RODRIGUEZ; JUAN LUIS
RODRIGUEZ; YOLANDA TAPIA;
GRISELDA RODRIGUEZ, through her
next friend MARIA RAQUEL
RODRIGUEZ,                                     No. 07-55241
                 Plaintiffs-Appellees,
                  v.                            D.C. No.
                                             CV-99-11821-CBM
UNITED STATES OF AMERICA; JOHN                   OPINION
HOFFMAN; THEODORE THOMPSON;
ROBERT OLIVER; MANUEL VASQUEZ,
all substituted for United States of
America,
              Defendants-Appellants.
                                         
        Appeal from the United States District Court
            for the Central District of California
       Consuelo B. Marshall, District Judge, Presiding

                    Argued and Submitted
             July 18, 2008—Pasadena, California

                   Filed September 4, 2008

   Before: Barry G. Silverman, Johnnie B. Rawlinson, and
            Milan D. Smith, Jr., Circuit Judges.

            Opinion by Judge Milan D. Smith, Jr.




                             12287
                RODRIGUEZ v. UNITED STATES          12291


                       COUNSEL

Peter R. Maier, United States Department of Justice, Wash-
ington, D.C., for the defendants-appellants.
12292             RODRIGUEZ v. UNITED STATES
Gladys Limón, Mexican American Legal Defense and Educa-
tion Fund, Los Angeles, CA & Janice Mac Avoy, Fried,
Frank, Harris, Shriver and Jacobson LLP, New York, NY, for
the plaintiffs-appellees.


                          OPINION

MILAN D. SMITH, JR., Circuit Judge:

   Plaintiffs-Appellees, five members of the family of Maria
Rodriguez (the Rodriguez family), sued the United States fol-
lowing an attempt by four federal immigration officers to exe-
cute an administrative warrant for the arrest and removal of
Marisela Rodriguez-Wence at the Rodriguez family’s home
(the Operation). After a bench trial, the district court entered
judgment for the Rodriguez family on some of its claims
against the United States under the Federal Tort Claims Act
(FTCA) and awarded the Rodriguez family a total of
$230,000 in damages. The Rodriguez family moved for attor-
ney’s fees under the Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412(b). The district court awarded the Rodriguez
family $917,684.82 in fees on the grounds that the govern-
ment litigated a number of issues in bad faith and that the
government’s pre-litigation conduct was in bad faith. The
government now appeals the fee award. We affirm, in part,
reverse, in part, and remand to the district court.

   FACTUAL AND PROCEDURAL BACKGROUND

  A.    Pre-Operation Investigation

   Before attempting to arrest Rodriguez-Wence at the Rodri-
guez family’s home on Piedmont Street in Oxnard, California,
Thompson, the officer in charge of the operation, reviewed
the file on Rodriguez-Wence maintained by the former Immi-
gration and Naturalization Service (INS). The file included
                    RODRIGUEZ v. UNITED STATES                   12293
identifying information such as a physical description, a driv-
er’s license number and picture, and Rodriguez-Wence’s
social security number. The file also contained two addresses
for Rodriguez-Wence, neither of which was on Piedmont
Street. In fact, the INS had over fifteen possible addresses for
Rodriguez-Wence, none of which was on Piedmont Street.

   Thompson also searched records maintained by the Califor-
nia Department of Motor Vehicles in an attempt to determine
Rodriguez-Wence’s location. In his first search, he entered
“Marisela Rodriguez-Wence” and her date of birth. The
search yielded an address other than the Piedmont Street
address. Thompson then entered the name “Marisela Rodri-
guez” with no date of birth and obtained a result for “Marisela
Rodriguez V” at the Piedmont Street address. The search also
revealed the make, model, and license plate of the car regis-
tered to Marisela Rodriguez V.1 But Thompson does not recall
comparing any of the identifying information he had about
Rodriguez-Wence with information about Marisela Rodriguez
V, nor did any officer conduct surveillance or attempt to con-
tact the occupants at the Piedmont Street address to determine
if Rodriguez-Wence resided there.

  B.    The Operation

  At about 4:30 a.m. on the morning of the Operation,
Thompson met with three other INS officers (Hoffman, Oli-
ver, and Vazquez). He showed them a photograph of
Rodriguez-Wence and told them of the vehicles registered to
her. He also told the officers that they were required to obtain
consent before entering the home on Piedmont Street. Around
approximately 5:00 a.m., while it was still dark, the four offi-
cers approached the front door of the Rodriguez family’s
  1
   Marisela Rodriguez V is the daughter of Roberto and Maria Rodriguez,
and has no relation to Marisela Rodriguez-Wence. At the time of the
Operation, Marisela Rodriguez V did not reside at the Rodriguez family’s
home.
12294             RODRIGUEZ v. UNITED STATES
home and woke the family by yelling and pounding on the
front door. Maria and Roberto Rodriguez and four children
(ranging from ages two to twenty-one) were asleep in the
house at the time the officers arrived.

   When Maria arrived at the door, the officers told her it was
the police and ordered her to open the door. Maria opened the
door slightly and saw four armed men. According to Maria,
the officers did not show their credentials or tell Maria or any-
one else that they were from the INS or why they were there.
Thompson believed that Maria was thirty or thirty-one years
old, and Hoffman thought she was between thirty-five and
fifty-five years old and had a “fairly slender, medium build.”
Based on the information available to the INS, Rodriguez-
Wence, the target of the operation, was twenty-six years old,
five feet tall, and 160 pounds.

   Maria, who speaks only Spanish, testified that she told the
officers to wait so she could get dressed and obtain the help
of an English-speaking family member. According to Maria,
after she told the officers to wait, she turned and the officers
followed her into the house. Maria testified that she did not
explicitly tell the officers they could not come in, but that they
did not ask for permission to enter. When Maria noticed the
men had entered the home, she was too scared and nervous to
say anything. According to Maria, as she approached her bed-
room, she encountered her daughter Yolanda who asked what
was going on, and Thompson ordered Yolanda to “shut up
and go sit down in the living room.”

   The officers’ various accounts of whether they had consent
to enter are, however, less than clear. According to Thomp-
son’s trial testimony, Hoffman requested permission to enter
in Spanish, Maria consented, and Yolanda appeared at the
door less than a minute later and also consented before the
officers entered the house. In an earlier incident report,
Thompson claimed that Maria gave consent to enter. But in
a sworn interview, Thompson stated that Maria answered the
                 RODRIGUEZ v. UNITED STATES              12295
door and Yolanda consented to their entry; he recalled that he
spoke to Maria in English and she appeared confused. In
response to an interrogatory, Thompson answered that Maria
consented to the officers entering her home. At his deposition
in 2002, Thompson testified that Maria answered the door,
that Hoffman asked for permission to enter in Spanish, and
then Yolanda appeared and gave consent to enter.

   At trial, Hoffman testified that he asked Maria in Spanish
if the officers could come in and she, not Yolanda, gave the
officers permission to enter by responding “si.” In an earlier
interview, Hoffman stated that it was Yolanda that gave con-
sent. Vasquez, who is fluent in Spanish, testified that Hoff-
man asked for permission to enter in Spanish and Maria said
“yes”; Vasquez believed she said “yes” in English. And Oli-
ver testified that Maria gave permission to enter by saying
“si.”

  C.   Post-Operation Litigation

   The Rodriguez family sued the United States and the INS
officers. The government successfully narrowed the claims
against the individual defendants prior to filing for summary
judgment, and the district court granted, in part, the govern-
ment’s motion for partial summary judgment dismissing cer-
tain claims against the four officers and the United States.

   The court held a bench trial on the FTCA claims, and the
United States asserted, among other defenses, that the officers
were privileged to enter the home, that they obtained consent
to enter, and that the members of the Rodriguez family were
contributorily negligent based on their actions when the offi-
cers arrived. The district court entered judgment against the
United States and in favor of the Rodriguez family, awarding
the family a total of $230,000 in damages.

  The Rodriguez family filed a motion for attorney fees
under the EAJA. The district court first concluded that the
12296                RODRIGUEZ v. UNITED STATES
government’s argument that the officers’ entry was privileged
because they had reasonable suspicion to believe that
Rodriguez-Wence would be at the Rodriguez family’s home
was reckless and frivolous. The district court similarly found
that the government’s argument that the officers had consent
to enter the home was likewise reckless and frivolous. Finally,
the district court concluded that the government’s pre-
litigation conduct was also in bad faith.2 The court awarded
the Rodriguez family a total of $917,684.82 in attorney fees.

      JURISDICTION AND STANDARD OF REVIEW

   We have jurisdiction to review a district court’s award of
attorney fees under 28 U.S.C. § 1291, and we review a district
court’s decision regarding the amount of an award of fees
under the EAJA for abuse of discretion. Brown v. Sullivan,
916 F.2d 492, 495 (9th Cir. 1990). We review a district
court’s finding regarding a party’s bad faith for clear error.
Cazares v. Barber, 959 F.2d 753, 754 (9th Cir. 1992); Brown,
916 F.2d at 495.

                             DISCUSSION

  A.    The Equal Access to Justice Act

   [1] Under the EAJA, “a court may award reasonable fees
and expenses of attorneys . . . to the prevailing party in any
civil action brought by or against the United States or any
agency or any official of the United States acting in his or her
  2
    The district court also concluded, in a footnote, that the government’s
defense of contributory negligence was frivolous because it attempted to
shift the duty of proving consent to the occupant of the home. The govern-
ment did not argue in its opening brief that the district court erred in con-
cluding that its defense of contributory negligence was frivolous; thus, the
government has waived that argument on appeal. See Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999). We also do not address whether any “exi-
gent circumstances” argument was in bad faith because the district court
did not base its fee award on that argument.
                     RODRIGUEZ v. UNITED STATES                     12297
official capacity . . .” 28 U.S.C. § 2412(b). The EAJA further
provides that the “United States shall be liable for such fees
and expenses to the same extent that any other party would
be liable under the common law . . .” Id. (emphasis added).
The common law allows a court to assess attorney’s fees
against a losing party that has “acted in bad faith, vexatiously,
wantonly, or for oppressive reasons.” Chambers v. NASCO,
Inc., 501 U.S. 32, 45-46 (1991) (citations and internal quota-
tions omitted). The EAJA’s explicit incorporation of the com-
mon law in its attorney’s fees provision is a clear indication
that in all cases, including those sounding in tort, we hold the
government to the same standard of good faith that we
demand of all non-governmental parties.3

   [2] Under the common law, “[a] finding of bad faith is war-
ranted where an attorney ‘knowingly or recklessly raises a
frivolous argument, or argues a meritorious claim for the pur-
pose of harassing an opponent.’ ” Primus Auto. Fin. Servs,
Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997) (quoting In
re Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 436 (9th Cir.
1996)). Mere recklessness does not alone constitute bad faith;
rather, an award of attorney’s fees is justified when reckless
conduct is “combined with an additional factor such as frivo-
lousness, harassment, or an improper purpose.” Fink v.
Gomez, 239 F.3d 989, 993-94 (9th Cir. 2001). “A frivolous
case is one that is groundless . . . with little prospect of suc-
cess; often brought to embarrass or annoy the defendant. The
case is frivolous when the government’s position was fore-
closed by binding precedent or so obviously wrong as to be
frivolous.” United States v. Manchester Farming P’ship, 315
  3
   The EAJA also authorizes the payment of attorney’s fees and other
expenses to a prevailing party “unless the court finds that the position of
the United States was substantially justified or that special circumstances
make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). This provision does
not apply to cases “sounding in tort.” Id.
12298                 RODRIGUEZ v. UNITED STATES
F.3d 1176, 1183 (9th Cir. 2003) (citation and internal quota-
tions omitted).4

   In contesting the award of attorney’s fees, the government
argues that the district court’s finding of bad faith was clearly
erroneous with respect to the defenses of consent and privi-
lege. The government also contends that the district court
relied excessively on the government’s pre-litigation conduct,
and that the government’s other successes in the litigation
support that it did not act in bad faith. We address each of
these arguments in turn.

  B.    Defense of Consent

   In the district court, the government argued that the officers
had consent to enter the Rodriguez family’s home.5 The dis-
trict court cited this part of the government’s case as one
aspect of its bad faith. We disagree. The record shows that the
government had some factual support for its argument that the
officers obtained consent before entering the Rodriguez fami-
ly’s home; thus, we conclude that the district court clearly
erred in holding that the government’s defense of consent
demonstrated bad faith.

  The government’s defense of consent was supported by the
admissible testimony of several percipient witnesses; there-
  4
     The government suggests that an argument must be both objectively
and subjectively frivolous, but we have previously required only that an
argument be objectively frivolous. See United States v. Sherburne, 249
F.3d 1121, 1126 n.4 (9th Cir. 2001) (“Unlike the term ‘frivolous,’ the term
‘vexatious’ has both a subjective and an objective component.”).
   5
     It is, of course, well established that consent to search is an “exception
to the Fourth Amendment’s prohibition of warrantless searches of homes.”
United States v. Enslin, 327 F.3d 788, 793 (9th Cir. 2003). The consent,
however, must be valid. See United States v. Shaibu, 920 F.2d 1423, 1425
(9th Cir. 1990). The Rodriguez family has not argued that it was frivolous
for the government to raise the defense of consent on any basis other than
a lack of facts to support that someone consented to the officers’ entry.
                  RODRIGUEZ v. UNITED STATES               12299
fore, we cannot conclude that it was “so obviously wrong” or
so lacking in support that it was “groundless.” See Manches-
ter Farming P’ship, 315 F.3d at 1183 (stating that a “frivolous
[argument] is one that is groundless,” and an argument is
groundless if it is “foreclosed by binding precedent or . . .
obviously wrong”); see also Oxford English Dictionary (2d
ed. 1989) (defining “groundless” as “[d]estitute of foundation,
authority, or support; having no real cause or reason;
unfounded”). It is true that the accounts of the officers relat-
ing to consent varied. Most notably, Thompson stated on one
occasion that both women consented to their entry, on other
occasions that Maria gave consent, and on yet another occa-
sion that only Yolanda gave the officers consent. Though
Thompson’s accounts are inconsistent, the three other officers
agree that Hoffman asked Maria for consent to enter in Span-
ish. And these three officers all testified that Maria consented
to their entry, with two of the officers testifying that her con-
sent was given in Spanish and one who “believes” her consent
was given in English. Of these three officers, only Hoffman
had previously contradicted his testimony by testifying, in an
earlier interview, that it was Yolanda who gave consent.

   [3] Thus, while the factual support for the government’s
defense of consent was weakened by inconsistencies and con-
tradictions, the theory that Maria consented to the officers’
entry was supported by competent testimony. As a result, if
the district judge found the testimony of certain officers credi-
ble, it could have concluded that Maria consented to the offi-
cers’ entry. See United States v. Lindberg, 220 F.3d 1120,
1125 (9th Cir. 2000) (affirming the district court’s conclusion
that the government’s arguments were not vexatious or frivo-
lous when there was evidence from which the jury could infer
that the defendant had the requisite knowledge). For this rea-
son, we cannot conclude that the government’s defense of
consent was “groundless.”

   [4] We also conclude that the district court’s determination
that the government’s defense of consent was in bad faith
12300                 RODRIGUEZ v. UNITED STATES
rises to the level of clear error. Reversal for clear error
requires “a definite and firm conviction” that the district court
made a mistake. United States v. Asagba, 77 F.3d 324, 326
(9th Cir. 1996). Here, it was the Rodriguez family’s burden
as the prevailing party to show the government’s bad faith.
Espinoza-Gutierrez v. Smith, 94 F.3d 1270, 1279 (9th Cir.
1996). But the Rodriguez family’s only argument to support
bad faith with respect to the government’s consent defense is
that the defense lacked factual support. And, for the reasons
described above, that argument is not only unpersuasive, but
also based on an inaccurate reading of the officers’ testimony.
Moreover, awarding fees based on bad faith “is punitive and
should be imposed ‘only in exceptional cases and for domi-
nating reasons of justice.’ ” Id. (quoting Brown, 916 F.2d at
495). Because the government had at least some testimony
from witnesses who were at the scene of the Operation to sup-
port its defense of consent, “dominating reasons of justice”
did not require a finding of bad faith.

  C.     Defense of Privilege

   The government also argued in the district court that the
officers’ conduct in detaining and questioning the Rodriguez
family was “privileged” because they had a reasonable suspi-
cion based on specific articulable facts that they would find
Rodriguez-Wence in the Rodriguez family’s home.6 The dis-
    6
      On appeal, the parties do not brief in any detail the legal basis for the
government’s defense of privilege. The district court’s order suggests that
the government argued, citing 8 C.F.R. § 287.8 and California Civil Code
§ 43.55, that the officers’ conduct was privileged because the officers had
a reasonable suspicion that someone at the Rodriguez family’s home was
an alien or engaged in an offense against the United States. See 8 C.F.R.
§ 287.8 (“An arrest shall be made only when the designated immigration
officer has reason to believe that the person to be arrested has committed
an offense against the United States or is an alien illegally in the United
States.”); Cal. Civ. Code § 43.55 (“There shall be . . . no cause of action
. . . against, any peace officer who makes an arrest pursuant to a warrant
of arrest regular upon its face if the peace officer in making the arrest acts
                     RODRIGUEZ v. UNITED STATES                      12301
trict court concluded that “it was reckless and frivolous for the
Government to attempt to argue that the officers had a reason-
able suspicion given the perfunctory search.” This conclusion
was not clearly erroneous.

   The record does not support that the officers’ pre-Operation
investigation gave the officers specific reasons to believe that
they would find Rodriguez-Wence at the Rodriguez family’s
home. The only evidence even remotely connecting
Rodriguez-Wence to the Piedmont Street address was Thomp-
son’s search that was not based on Rodriguez-Wence’s full
name or any other identifying information. And that search
yielded a name that is materially different from “Marisela
Rodriguez-Wence.” Moreover, although the difference in
names concerned Thompson, he neglected to compare identi-
fying information associated with these names, such as driv-
er’s license numbers, despite his ability to do so.

   [5] Other evidence in the record supports strongly that
Rodriguez-Wence would not be found at that address. The
INS had a number of other addresses for Rodriguez-Wence,
none of which matched the Piedmont Street address. And no
efforts were made to verify that Rodriguez-Wence lived at the
Piedmont Street address before the Operation. Here, the dis-
trict court concluded that government’s defense of privilege
was so lacking in support that it constituted bad faith and the
record supports that conclusion. See Lindberg, 220 F.3d at
1124 (stating that deference to a district court’s finding of bad
faith is particularly appropriate because the “district court
hears evidence from the beginning” and can best determine
whether a party’s argument “is so lacking in support that it

without malice and in the reasonable belief that the person arrested is the
one referred to in the warrant.”). We need not pass on the applicability or
merits of this defense in this appeal. Rather, we consider only whether the
district court abused its discretion in concluding that, as presented by the
government, this argument constituted bad faith.
12302             RODRIGUEZ v. UNITED STATES
can only be . . . in bad faith”). Thus, the district court’s find-
ing of bad faith with respect to the defense of privilege was
not clearly erroneous.

  D.    Pre-litigation Conduct

    [6] The government also argues that the district court relied
excessively on the government’s pre-litigation conduct in
finding bad faith. The district court did discuss the conduct
underlying the litigation—the unreasonably perfunctory
search, a failure to follow INS policy requiring consent to
enter the home, and the officer’s conduct during the entry and
search of the home—in finding bad faith. But the district
court correctly recognized that an award of attorney’s fees is
not appropriate when it is “based solely upon a finding of bad
faith in the conduct underlying the lawsuit.” Ass’n of Flight
Attendants v. Horizon Air Indus., 976 F.2d 541, 550 (9th Cir.
1992) (emphasis added). In Association of Flight Attendants,
this court noted that no circuit court has shifted attorney fees
based “solely upon a finding of bad faith as an element of the
cause of action presented in the underlying suit,” but recog-
nized a possibility that “prelitigation conduct might be rele-
vant to an award of fees for bad faith conduct during the
litigation.” Id. at 549-50. We have previously approved of dis-
trict courts considering the “totality of the circumstances,”
including conduct “prelitigation and during trial,” when mak-
ing bad faith determinations. See Cazares, 959 F.2d at 755
(quoting Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir.
1983) (emphasis added)). In this case, the pre-litigation con-
duct was only one of several grounds on which the district
court granted attorney’s fees. As a result, we conclude that the
district court did not excessively rely on the government’s
pre-litigation conduct.

    The government also contends that the district court did not
pay sufficient attention to other aspects of the government’s
litigation conduct, including the fact that it narrowed the
claims for trial and limited the damages, which, according to
                   RODRIGUEZ v. UNITED STATES               12303
the government, demonstrates that it litigated zealously but
not in bad faith. This approach would, in effect, absolve the
government of responsibility for bad faith litigation conduct
because, at various points during the many years this case was
litigated, it achieved some success. We hold that it is unneces-
sary to find that every aspect of a case is litigated by a party
in bad faith in order to find bad faith by that party.

  E.   Remedy

    [7] The district court explicitly based its conclusion that the
Rodriguez family was entitled to $917,684.82 in attorney’s
fees on numerous aspects of the government’s case that,
together, constituted bad faith—specifically, the govern-
ment’s litigation of the issues of consent, privilege, and con-
tributory negligence in bad faith and the government’s pre-
litigation conduct. Nothing in the district court’s order con-
firms that had it based its decision on a few, but not all of
these grounds, it would have granted a fee award in the same
amount. And, while it is true that the district court concluded
that no specific portions of the litigation were unaffected by
the government’s bad faith, this statement was premised on its
clearly erroneous finding that the government’s litigation of
its primary defense, the defense of consent, was in bad faith.
Thus, even though the court may award fees for the entire
course of litigation “if it finds that the fees incurred during the
various phases of litigation are in some way traceable to the
. . . bad faith,” Brown, 916 F.2d at 497, we cannot determine
from the record exactly what fees are traceable to the govern-
ment’s bad faith when the defense of consent is removed from
the calculation. Moreover, the district court is in the best posi-
tion to make this determination. Cf. id. (concluding that the
district court erred in not finding bad faith and remanding so
that the district court could exercise its discretion to award
attorney’s fees “in some way traceable to the . . . bad faith).
On this basis, we remand to the district court so that it may
consider what, if any, modification of the fee award is appro-
priate in light of this opinion.
12304            RODRIGUEZ v. UNITED STATES
                      CONCLUSION

   The opinion of the district court is AFFIRMED, in part,
REVERSED, in part, and REMANDED to the district court
for reconsideration in light of this opinion. Each party shall
bear its own costs on appeal.
