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2. Analysis
a. September 8, 2005 Order
As indicated above, in our September 8, 2005 order, see
appendix, we resolved to “treat * * * [petitioners] as having
revived their section 7430 claims” that we had rejected in Dixon
IV. We did so “In light of the test case petitioners’ subsequent
appellate victory, and in order to give effect to Jean’s mandate
to ‘[treat] a case as an inclusive whole’ in applying fee-
shifting statutes”.17 That approach presupposes, in derogation of
respondent’s jurisdictional argument, that a request for
appellate fees under a fee-shifting statute (as opposed to a “fee
sanction” rule, see supra Part I.B.1.) need not originate in the
Court of Appeals. We continue to adhere to that view. See
Little Rock Sch. Dist. v. State of Ark., 127 F.3d 693, 696-697
(8th Cir. 1997) (claimant’s failure to move for appellate fees
under 8th Cir. R. 47C--the analog of Ninth Circuit rule 39-1.6
and 39-1.8--did not preclude District Court from including
appellate fees in its fee award under civil rights fee-shifting
statute; although filing in the Court of Appeals is the preferred
17 See Commissioner, INS v. Jean, 496 U.S. 154, 161-162
(1990), in which the Supreme Court held that the recipient of a
fee award under the Equal Access to Justice Act (EAJA), the fee-
shifting statute from which sec. 7430 derives, may recover fees
incurred litigating the fee award without a separate showing that
the Government’s opposition to the fee award was not
substantially justified.
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