- 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.Page: Previous 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 Next
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