- 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.Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Next
Last modified: May 25, 2011