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believe Rule 11 is more sensibly understood as permitting an
award only of those expenses directly caused by the
[sanctionable] filing, logically, those at the trial level.”
Cooter & Gell v. Hartmarx Corp., 496 U.S. at 406. Thus, while
Jean contemplates that the recipient of an EAJA fee award may
recover fees incurred in defending the award on appeal without a
separate showing that the Government’s appeal of the award was
not substantially justified, the Court in Cooter & Gell concluded
that a litigant defending a Rule 11 fee award on appeal may
recover appellate expenses “only when those expenses are caused
by a frivolous appeal, and not merely because a Rule 11 sanction
upheld on appeal can ultimately be traced to a baseless filing in
district court.” Id. at 407.
The foregoing dichotomy suggests that a litigant who is
entitled to attorney’s fees at the trial level on the basis of
his opponent’s misconduct must, in the absence of additional
sanctionable conduct at the appellate level, premise any claim
for appellate fees on a fee-shifting (prevailing party)
provision. Because some fee-shifting provisions impose
restrictions (such as hourly rate caps) that may not apply to fee
sanctions, such a litigant may find that his claims for
attorney’s fees incurred during the trial and appellate phases,
respectively, of the same litigation are subject to markedly
different rules. That is the case here. Under section
6673(a)(2), we are authorized to sanction respondent for the
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