Jerry and Patricia A. Dixon, et al. - Page 22

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          inconsistent with the unitary approach espoused by the Court in             
               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               

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