Jerry and Patricia A. Dixon, et al. - Page 21

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               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                     

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