- 22 -
inconsistent with the unitary approach espoused by the Court in
Jean.20
C. The Other Side of the Coin: Inapplicability
of Section 6673(a)(2) and the Bad Faith Exception
The distinction between fee-shifting provisions and fee
sanctions also informs our prior refusals to evaluate
petitioners’ appellate fee requests under either section
6673(a)(2) or the bad faith exception, each of which falls into
the fee sanction category. See Apps. A, B, C. In contrast to
the unitary approach adopted in the fee-shifting (EAJA) case of
Commissioner, INS v. Jean, 496 U.S. at 159, under which “only one
threshold [substantial justification] determination for the
entire civil action is to be made”, the Supreme Court adopted a
“direct causation” approach 1 week later in Cooter & Gell v.
Hartmarx Corp., supra, a case involving a fee sanction under Rule
11. There, the Court rejected the argument that the reference in
Rule 11 (as then in effect) to fees and expenses incurred
“because of” the offending filing included fees incurred in
defending a District Court’s Rule 11 sanction on appeal: “We
20 If the authority to award appellate fees under the EAJA
or sec. 7430 resided exclusively in the appellate courts, then
there would be two “substantial justification” determinations
whenever an appellate court, applying the (deferential) abuse of
discretion standard, see Pierce v. Underwood, 487 U.S. 552, 557-
563 (1988), upholds the trial court’s determination in that
regard (i.e., with respect to an EAJA or sec. 7430 fee request
pertaining to trial fees), but reaches the opposite conclusion in
disposing of a similar request for appellate fees in the same
case.
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