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appeal.” Respondent reasons that Izen filed his Ninth Circuit
rule 39-1.8 motion (requesting that the Court of Appeals transfer
consideration of attorney’s fees to the Tax Court) in case No.
01-70155--the Adair appeal–-and that “[t]he period for Mr. Izen
to request appellate attorney’s fees in connection with the
appeal in Case No. 00-70858 [the test case appeal] has long since
expired.” See 9th Cir. R. 39-1.6.
We begin by observing that we have already held we have
jurisdiction to consider the Jones fee request even though Jones
made no filing under either Ninth Circuit rule 39-1.6 or 39-1.8.
See supra Part II.A. It follows that we may consider the Izen
fee request in its entirety, despite the fact that Izen made no
filing in the test case appeal under either Ninth Circuit rule
39-1.6 or 39-1.8. Moreover, we would reach the same conclusion
even if an appellate filing were a prerequisite to our
consideration of appellate fees under section 7430. That is, we
conclude in the alternative that Izen’s timely motion under Ninth
Circuit rule 39-1.8 in the Adair appeal was sufficient to
transfer the issue of Izen’s fees in the test case appeal as
well.
Although we have been unable to find a case directly on
point, we believe Native Vill. of Quinhagak v. United States, 307
F.3d 1075 (9th Cir. 2002), is sufficiently analogous to support
our alternative ground for considering the Izen fee request in
its entirety. Quinhagak was one of several lawsuits filed in the
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