Jerry and Patricia A. Dixon, et al. - Page 23

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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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