Jerry and Patricia A. Dixon, et al. - Page 35

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               specialized skill needful for the litigation in                        
               question--as opposed to an extraordinary level of the                  
               general lawyerly knowledge and ability useful in all                   
               litigation.  Examples of the former would be an                        
               identifiable practice specialty such as patent law, or                 
               knowledge of foreign law or language. * * *  [Id. at                   
          Applying that reasoning, and leaving aside for the moment the               
          issue of tax expertise,32 we conclude that the general advocacy             
          and case management skills of petitioners’ counsel, while                   
          undoubtedly “needful for the litigation”, do not justify a                  
          departure from the statutory rate cap under the “limited                    
          availability of qualified attorneys” exception, however                     
          extraordinary in degree and limited in supply those skills may              
          be.  Cf. Hyatt v. Barnhart, 315 F.3d 239, 251 (4th Cir. 2002)               
          (“plaintiffs do not contend that expertise in class action                  
          enforcement and procedure is a ‘special factor’ warranting an               
          increase in the statutory [EAJA] maximum rate”; such expertise              
          “should certainly not be beyond that possessed or easily acquired           
          by reasonably competent attorneys”); Animal Lovers Volunteer                
          Association, Inc. v. Carlucci, 867 F.2d 1224, 1226-1227 (9th Cir.           
          1989) (rejecting claim that “considerable expertise in appellate            

          32 See infra Part III.B.2., discussing the “local                           
          availability of tax expertise” factor.  We note that, prior to              
          the addition of that factor to sec. 7430 in 1998, see supra note            
          15, courts applying sec. 7430 generally held that, inasmuch as              
          the provision applies exclusively to tax cases, counsel’s tax               
          expertise did not support the finding of a special factor.  See,            
          e.g., Huffman v. Commissioner, supra at 1150; Cassuto v.                    
          Commissioner, 936 F.2d 736, 743 (2d Cir. 1991), affg. in part and           
          revg. in part on other grounds 93 T.C. 256 (1989); McWilliams v.            
          Commissioner, T.C. Memo. 1995-111.                                          

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