dissenting.

Under the so-called American rule, each litigant is responsible for its own attorney’s fees. An exception to the rule applies when a party engages in bad faith litigation — that is, “vexatious, wanton, or oppressive conduct.” Barry v. Bowen, 825 F.2d 1324, 1334 (9th Cir.1987).

1. My colleagues approve an award of attorney’s fees against the United States for its bad faith. See 28 U.S.C. § 2412 (b). The core of the majority’s analysis is as follows:

Maj. op at 755. This passage is remarkable for how little it explains about what the United States did that was “vexatious, wanton, or oppressive,” or why my colleagues believe that the United States litigated in bad faith. As we have repeatedly made clear, an award of fees for bad faith is justified “only in exceptional cases and for dominating reasons of justice.” Brown v. Sullivan, 916 F.2d 492, 495 (9th Cir.1990) (internal quotations omitted). Such an award “must be based on specific findings that are not clearly erroneous or on sufficient evidence appearing in the record.” Barry, 825 F.2d at 1333 ; see also Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 , 100 S.Ct. 2455, 2464 , 65 L.Ed.2d 488 (1980) (fees may be awarded only after fair notice and opportunity for hearing on record); In re Yagman, 796 F.2d 1165, 1185 (9th Cir.) (reversing sanctions in part because of failure of court to explain bases for award), amended, 803 F.2d 1085 (9th Cir.1986).

The majority opinion conflicts with the well-settled law in this area. While the district court did indeed utter the words “bad faith,” it made no findings — much less any specific findings — about what conduct of the United States amounted to bad faith. True, the district court alluded to the government’s “arrogant and calloused attitude from the beginning,” but it did not explain what this supposed arrogance or callousness consisted of. Nor do my colleagues. I respectfully suggest that we may not affirm a bad faith attorney’s fees award where the district court merely chants the proper incantation, with nothing in the record to back it up. I fear that the majority’s casual approval of the sanctions in this case will be read as significantly loosening the standard for finding bad faith. While some have argued that fees should be awarded more often than the law presently allows, see President’s Council on Competitiveness, Agenda for Civil Justice Reform in America 24-25 (1991), this should not be accomplished by judicial disfigurement of the concept of bad faith.

2. Equally troubling is the majority’s reliance on the government’s post-litigation conduct. The government was not ordered to hold an induction ceremony; it was ordered to include Cazares if it held an induction ceremony. It decided not to hold a ceremony at all. This possibility was raised in the government’s opposition to plaintiff’s motion for a preliminary injunction, yet the district court did not compel the holding of a ceremony, and plaintiff did not seek an amendment to the injunction once she learned that the government had canceled the ceremony. It is unusual to accuse a party of bad faith based on its post-litigation conduct. See Barry, 825 F.2d at 1333 (“Bad faith may be found either in the actions that led to the litigation or in the conduct of that litigation.”). More so when the party has done exactly what the district court allows.

It doesn’t matter, of course, why a party chooses one of two permissible ways of *757 complying with a district court’s order, but the government’s interest in preserving its appeal does suggest it didn’t cancel the ceremony out of petty vindictiveness. My colleagues assert that the appeal would have been frivolous and “[sjeeking to preserve a frivolous appeal is itself frivolous,” maj. op. at 755, but they offer no support for their premise. And with good reason: The question presented in the district court — whether a high school may exclude unmarried parents from its National Honor Society — does not answer itself. Much judicial ink has been spilled applying the equal protection and due process clauses to various fact patterns, and I am not at all sure the district court’s application of these doctrines to the facts of this case was correct. And even if it was, the case is still light years away from the open-and-shut case of “government wrongdoing” the majority casually alludes to. See maj. op at 755.

My colleagues’ oblique suggestion that the government may have conceded the frivolousness of its position by dismissing the merits appeal is neither accurate nor fair. See id. at 755 n. 3. The government engages in complex deliberations before taking an appeal so that it can consider all relevant factors — including the cost of litigation, the burden on the court and parties, and the effective mootness of the controversy. The government litigators were permitted — even required — to maintain the status quo until Civil Division officials could decide whether to make an appeal recommendation to the Solicitor General. The government should be thanked for saving us a difficult decision on the merits, not saddled with a concession it didn’t make.

3. Finally, my colleagues are displeased that the government took an appeal on the attorney’s fees issue when only $5000 is at stake. Maj. op. at 755. Because this issue was not briefed or argued, it is difficult to know why the government chose to pursue this appeal, but it hardly matters: We must consider whether the government acted in bad faith during the merits proceedings in the district court. Its decision to take an appeal on the attorney’s fees question, like the manner it chose to comply with the district court’s order, is irrelevant to the question whether it acted in good faith in defending its substantive position in the district court.

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My colleagues obviously would have handled this case differently had they been representing the government, but that’s hardly a basis for finding that the government litigated in bad faith. Judicial vexation should not be confused for vexatious litigation. I respectfully dissent.