- 42 -
base rate under the EAJA”),36 and Pollgreen v. Morris, supra at
537-538 (citing Wilkett but not Shaw; delay can be a special
factor under the EAJA if “the length of the delay was
excessive”), with Marcus v. Shalala, 17 F.3d 1033, 1039 (7th Cir.
1994) (Wilkett, Okla. Aerotronics, and Perales “amount to an end
run around the no-interest rule in Shaw because the statutory
provision allowing for a higher fee where there is a special
factor is not the kind of express, unambiguous statutory language
sufficient to waive sovereign immunity”), and Chiu v. United
States, 948 F.2d 711, 721 (Fed. Cir. 1991) (stating in dictum
that the argument for delay as a special factor would not pass
muster under Shaw).37
We agree with the Courts of Appeals for the Seventh and
Federal Circuits that the Wilkett line of authority runs directly
counter to Library of Congress v. Shaw, supra. See also Wilkett
v. ICC, supra at 795 (Starr, J., dissenting from denial of rehg.
36 The Court of Appeals for the Fifth Circuit subsequently
stated, without mentioning Perales or its special factor
analysis, that Shaw precludes an award of interest on a sec. 7430
fee award. See Wilkerson v. United States, 67 F.3d 112, 120 n.15
(5th Cir. 1995).
37 The courts in Marcus v. Shalala, 17 F.3d at 1039, and
Chiu v. United States, 948 F.2d at 721, also contended that
Wilkett runs afoul of the Supreme Court’s subsequent admonition
in Pierce v. Underwood, 487 U.S. at 573, that special factors
under the EAJA cannot be of “broad and general application”. The
Court of Appeals for the D.C. Circuit attempted to reconcile its
holding in Wilkett with Pierce in Okla. Aerotronics, Inc. v.
United States, 943 F.2d 1344, 1350 (D.C. Cir. 1991) (clarifying
that “what makes the factor ‘special’ is not simple delay, but
unusual delay”).
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