- 21 -
The foregoing dictum from Cooter & Gell regarding the
authority of District Courts to award appellate attorney’s fees
under fee-shifting statutes is consistent with the Supreme
Court’s approach in Commissioner, INS v. Jean, 496 U.S. 154
(1990), issued 1 week prior to Cooter & Gell. In Jean, the Court
held that the recipient of a fee award under the Equal Access to
Justice Act (EAJA), the fee-shifting statute from which section
7430 derives, may recover fees incurred litigating the fee award
without a separate showing that the Government’s opposition to
the fee award was not substantially justified. See Commissioner,
INS v. Jean, supra at 159 (“only one threshold [substantial
justification] determination for the entire civil action is to be
made”). In so holding, the Court observed that while “[a]ny
given civil action can have numerous phases”, “the EAJA--like
other fee-shifting statutes--favors treating a case as an
inclusive whole”. Id. at 161-162.19 To interpret a fee-shifting
statute such as the EAJA or section 7430 as not authorizing a
trial court to award appellate attorney’s fees would be
19 The Court also noted that the EAJA “refers to an award of
fees ‘in any civil action’ without any reference to separate
parts of the litigation, such as discovery requests, fees, or
appeals.” Commissioner, INS v. Jean, 496 U.S. at 159 (emphasis
added). Similarly, sec. 7430(a)(2) refers to “costs incurred in
connection with such [tax-related] court proceeding”, and sec.
7430(c)(6) defines “court proceeding” as “any civil action
brought in a court of the United States” (including the Tax
Court), without any reference to separate phases of the
proceeding.
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