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for reconsideration of the Court of Appeals’ dismissal) regarding
the applicability of the “mailbox rule”, under which Jones’s
initial filing would have been deemed timely without regard to
the factual issue of the time of receipt. See sec. 7502(a); The
Manchester Group & Subs. v. Commissioner, 113 F.3d 1087 (9th Cir.
1997), revg. T.C. Memo. 1994-604. Because it is not at all clear
that Jones’s efforts on this procedural front were required
because of any error by him, we decline respondent’s invitation
to disregard those efforts altogether.36
c. The Cerasolis’ Motion To Intervene
Given the denial by the Court of Appeals of the Cerasolis’
motion to intervene in the test case appeal, the hours that Jones
and his paralegal devoted to that matter are subject to
disallowance under the limited success principle of Hensley v.
Eckerhart, 461 U.S. 424 (1983).37 See supra Part III.B.2.a.
36 Respondent objects to one “recertification” time entry
(4.0 hours) on the ground that recertification had occurred 5
months prior to the date of the entry. We assume that the entry
is simply misdated, and we allow the time in full.
37 One could argue that the time Jones devoted to his
clients’ separate interlocutory appeals should be disallowed as
well, since the Court of Appeals effectively rendered those
appeals nugatory by putting them on the back burner and
ultimately remanding the nontest cases for disposition consistent
with the mandate of Dixon V. We do not hold that view. Jones
pursued those appeals in response to this Court’s order
certifying the cases of the participating nontest case
petitioners for interlocutory appeal. We issued that order to
ensure that the participation rights endorsed by the Court of
Appeals in DuFresne v. Commissioner, 26 F.3d 105, 107 (9th Cir.
1994) (per curiam), vacating Dixon v. Commissioner, T.C. Memo.
(continued...)
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