- 40 -
affg. in part and revg. in part on other grounds 93 T.C. 256
(1989); Fields v. Commissioner, T.C. Memo. 2002-320; see also In
re Sealed Case 00-5116, 254 F.3d 233, 237 (D.C. Cir. 2001) (EAJA
case).
We agree with the majority view and conclude that
disregarding the section 7430 rate cap on the basis of the
attorney misconduct in this litigation would improperly add a
punitive aspect to the fee award. Stated differently, such an
approach would blur the distinction between fee-shifting
provisions and punitive measures that the Supreme Court has drawn
in cases such as Cooter & Gell v. Hartmarx Corp., 496 U.S. at
409, and Chambers v. NASCO, Inc., 501 U.S. at 51-55. See supra
Part I.B. As the dissent in Jean v. Nelson, 863 F.2d at 782
(Kravitch, J., dissenting), observed in reasoning that Government
misconduct should not be treated as a special factor under the
EAJA: “Rule 11 sanctions are always available to compensate ‘a
litigant whose opponent acts in bad faith in instituting or
conducting litigation.’” Here, the acknowledged misdeeds of
McWade and Sims have been the subject of sanctions under section
6673(a)(2)(B) with respect to proceedings at the trial level.
See supra Part I.C. Such misconduct is relevant to our present
task only in relation to the threshold issue under section 7430
of whether respondent’s position regarding the legal
ramifications of the misconduct was substantially justified. See
supra Part II.C.
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