- 35 - 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 572.] 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.Page: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
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