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limited availability of qualified attorneys. After narrowly
interpreting that factor, the Court continued:
For the same reason of the need to preserve the
intended effectiveness of the [then applicable] $75
cap, we think the other “special factors” envisioned by
the exception must be such as are not of broad and
general application. * * * The “novelty and difficulty
of issues,” “the undesirability of the case,” the “work
and ability of counsel,” and “the results obtained,”
are factors applicable to a broad spectrum of
litigation; they are little more than routine reasons
why market rates are what they are. The factor of
“customary fees and awards in other cases,” is even
worse; it is not even a routine reason for market
rates, but rather a description of market rates. * * *
[Id. at 573; citations to Pet. for Cert. omitted.]
Although Congress subsequently amended section 7430 to include
one of the factors specifically rejected by the Court in Pierce
(i.e., the difficulty of the issues), see supra note 15, there is
no indication in the relevant legislative history that the
amending Congress intended any broader retreat from the general
principles expressed in the foregoing excerpt in the context of
section 7430. Thus, factors that are of “broad and general
application” (including the undesirability of the case, work and
ability of counsel, and results obtained) presumably remain
insufficient justification for lifting the caps.
b. The Government’s Misconduct
It is certainly tempting to point to the attorney misconduct
in this litigation as a special factor that justifies a departure
from the hourly rate cap of section 7430. Support for that
position may be found in Jean v. Nelson, 863 F.2d 759 (11th Cir.
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