- 54 -
that effort.” Sisk, 56 La. L. Rev. at 119; see also Hensley v.
Eckerhart, supra at 436 (one way a court can give effect to the
limited success factor is by “attempt[ing] to identify specific
hours that should be eliminated”). That is the case with regard
to our rejection of the PH petitioners’ attempts (1) to avoid the
section 7430 rate cap by asserting entitlement under the bad
faith exception and section 6673, and (2) to obtain interest on
their fee award (see infra Part IV). Specifically, the PH
petitioners’ August 2005 amendment of their fee request (and the
prerequisite motion for leave to amend), their motion for
reconsideration of our September 1, 2005 order, and their
November 2005 request for appellate fees under section 6673
pertain exclusively to those unsuccessful claims. We therefore
disallow the 123.7 hours Porter & Hedges devoted to those
filings.47 Cf. Anthony v. Sullivan, 982 F.2d 586 (D.C. Cir. 1993)
(plaintiff initially sought recovery of fees under both the Title
VII fee provision, which contains no rate cap, and the EAJA;
after Court of Appeals overturned the Title VII award, plaintiff
established entitlement to EAJA award on remand; held, Hensley
dictates that plaintiff’s EAJA award not include any fees
incurred in the unsuccessful defense of the Title VII award on
appeal).
47 We do not intend to suggest thereby that the positions
taken in those filings are in any way frivolous. See Hensley v.
Eckerhart, supra at 436 (partial or limited success must be taken
into account even though the unsuccessful claims are nonfrivolous
and raised in good faith).
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