- 39 -
1988), affd. on other grounds sub nom. Commissioner, INS v. Jean,
496 U.S. 154 (1990), in which a divided panel of the Court of
Appeals for the Eleventh Circuit concluded that the Government’s
misconduct can be a special factor under the EAJA.35 The
majority rejected the notion that the threshold “reasonableness”
inquiry under the EAJA precludes any further consideration of the
Government’s behavior:
As the dissent points out, the EAJA already requires
that the government’s position have no ‘reasonable
basis in law and fact’ as a condition precedent to the
recovery of fees. The EAJA does not, however, protect
a litigant against potential government harassment. It
is easy to imagine a situation where a position that is
not ‘substantially justified’ is exacerbated by
improper purposes in defending the lawsuit. * * * Thus,
if the government in this case advanced litigation for
any improper purpose such as harassment, unnecessary
delay or increase in the plaintiffs’ expense, then
consistent with Pierce, its action warrants the
imposition of a special factor. [Id. at 776 n.13.]
See also Pollgreen v. Morris, 911 F.2d 527, 537-538 (11th Cir.
1990). However, the Court of Appeals for the Fifth Circuit
explicitly rejected the Jean analysis in Estate of Cervin v.
Commissioner, 200 F.3d 351, 355-358 (5th Cir. 2000), affg. T.C.
Memo. 1998-176, reasoning that the finding of a special factor
under section 7430 based on the Government’s misconduct would
amount to an impermissible award of punitive damages. Accord
Cassuto v. Commissioner, 936 F.2d 736, 743-744 (2d Cir. 1991),
35 The Supreme Court’s affirmance of Jean is limited to the
Court of Appeals’ holding that fees incurred in obtaining an EAJA
fee award are recoverable regardless of whether the Government
was substantially justified in opposing the initial fee request.
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