t c memo united_states tax_court jerry and patricia a dixon et al petitioners v commissioner of internal revenue respondent docket nos filed date henry binder and john a irvine counsel for petitioners in docket nos and michael louis minns and enid m williams counsel for petitioners in docket no henry e o’neill and peter r hochman counsel for respondent cases of the following petitioners are consolidated herewith robert l and carolyn s dufresne docket nos and terry d and gloria k owens docket no and richard and fiorella hongsermeier docket no contents page background discussion a b i introduction overview of sec_7430 tax court’s authority to award appellate fees under sec_7430 the other side of the coin inapplicability of sec_6673 and the bad faith exception c a b ii entitlement to relief under sec_7430 respondent’s position paid_or_incurred requirement overview real parties_in_interest substantial justification defense identifying the position_of_the_united_states in the proceeding substantial justification analysis conclusion c d iii amount of award a b respondent’s position applicability of statutory rate cap limited availability of qualified attorney sec_1 local availability of tax expertise difficulty of the issues other possible special factor sec_4 a b c d conclusion c compensable hours in general the government’s misconduct the delay factor test case status respondent’s objection sec_5 a duplicative fees due to change_of counsel overstaffing porter hedges client conference sec_45 b c additional adjustments to time claimed for the appeal sec_49 a missing minns time entrie sec_2 b c d minns hours relating to dispute with committee additional porter hedges time relating to minns dispute porter hedges time relating to bill of costs porter hedges time relating to remand e adjustments to porter hedges time relating to fee request a b total the hongsermeiers--work on the appeal a b c the hongsermeiers--work on the fee request a b c the ph petitioners a to b c total d initial research time time relating to unsuccessful claims computation of potentially compensable fees to application of limited success factor potentially compensable expenses amounts paid_or_incurred by eligible persons minns agreement porter hedges agreement amounts paid through the defense fund a b amounts paid directly to minns amounts incurred but not paid summary final figures d e f g iv interest appendix a--date order appendix b--date order appendix c--date order memorandum opinion beghe judge these cases are before the court on separate remand from the court_of_appeals for the ninth circuit in this opinion we address petitioners’ requests for appellate attorney’s fees and expenses under sec_7430 originally filed with the court_of_appeals in the aftermath of 316_f3d_1041 9th cir revg and remanding tcmemo_1999_101 background3 petitioners the dixons dufresnes owenses and hongsermeiers are along with one other couple--the youngs--the remaining test case petitioners in the kersting tax_shelter litigation that litigation arose from respondent’s disallowance of interest deductions claimed by participants in various tax_shelter programs promoted by henry f k kersting during the late 1970s through the 1980s under the test case procedure most of the other kersting program participants who had filed tax_court petitions nontest case petitioners entered into piggyback agreements in which they agreed that their cases would be resolved in accordance with the court’s opinion in the test cases eventually more than nontest case petitioners made unless otherwise indicated section references are to the internal_revenue_code_of_1986 as amended and rule references are to the tax_court rules_of_practice and procedure the following background statement is based on the existing record and additional information submitted by the parties in connection with the appellate fee requests we have not found it necessary to hold an evidentiary hearing see rule a upon the final disposition of the test cases the relatively few nontest case petitioners who did not enter into piggyback agreements will generally be ordered to show cause why their cases should not be decided in the same manner as the test cases periodic and or lump sum contributions to a fund hereafter the defense fund or fund created to share the cost of the test case litigation following a 3-week trial the court sustained virtually all of respondent’s determinations in each of the test cases see dixon v commissioner tcmemo_1991_614 dixon ii shortly thereafter on date respondent notified the court that prior to the trial of the test cases respondent’s trial attorney kenneth w mcwade mcwade and his supervisor honolulu district_counsel william a sims sims had entered into contingent settlement agreements with two of the test case petitioners the thompsons and the cravenses and had failed to disclose those agreements to their superiors to the court or to the other test case petitioners or their counsel respondent asked the court to conduct an evidentiary hearing to determine whether the undisclosed agreements had affected the trial of the test cases or the opinion of the court the court denied respondent’s request for an evidentiary hearing entered decisions giving effect to the thompson and cravens settlements and reentered or allowed to stand the decisions sustaining the defense fund was initially known as the don belton legal defense fund and subsequently became known as the atlas legal defense fund prior to the trial of the test cases the court had issued an opinion rejecting the test case petitioners’ arguments that certain evidence should be suppressed and that the burden_of_proof should be shifted to respondent see 90_tc_237 dixon i respondent’s determinations against the other test case petitioners on appeal the court_of_appeals for the ninth circuit citing 499_us_279 stated we cannot determine from this record whether the extent of misconduct rises to the level of a structural defect voiding the judgment as fundamentally unfair or whether despite the government’s misconduct the judgment can be upheld as harmless error 26_f3d_105 9th cir per curiam vacating dixon v commissioner tcmemo_1991_614 the court_of_appeals vacated the court’s decisions in the test cases other than the thompson and cravens cases and remanded them for an evidentiary hearing to determine the full extent of the admitted wrong done by the government trial lawyers id in response to the direction of the court_of_appeals to consider on the merits all motions of intervention filed by interested parties this court ordered that the cases of nontest case petitioners hereafter the participating nontest case petitioners be consolidated with the remaining test cases for purposes of the evidentiary hearing one of the participating nontest case petitioners was represented by joe alfred izen jr izen who had represented the test case petitioners other than the thompsons and cravenses at the original trial the others were represented by either robert alan jones jones or robert patrick sticht sticht on the basis of the record developed at the evidentiary hearing the court held that the misconduct of the government attorneys in the trial of the test cases did not constitute a structural defect in the trial but rather resulted in harmless error see dixon v commissioner tcmemo_1999_101 dixon iii however the court imposed sanctions against respondent holding that kersting program participants who had not had final decisions entered in their cases would be relieved of liability for the interest component of the addition_to_tax for negligence under former sec_6653 and the incremental interest attributable to the increased rate prescribed in former sec_6621 after the issuance of dixon iii the remaining test case petitioners all of whom were still represented by izen and some of the participating nontest case petitioners filed motions for attorney’s fees and costs the initial fee requests relying primarily on sec_7430 and sec_6673 the court ordered the movants to submit documentation pertaining to fees and expenses_incurred commencing date ie the day after the court learned of the misconduct by the government attorneys in dixon v commissioner tcmemo_2000_116 dixon iv the court rejected the initial fee requests insofar as they relied on sec_7430 on the ground that the movants had not substantially prevailed on the merits as required by sec_7430 however the court awarded a portion of the claimed fees and expenses under sec_6673 relating to misconduct of the commissioner’s attorneys in tax_court proceedings the court entered decisions in the remaining test cases and certified the cases of the participating nontest case petitioners for interlocutory appeal izen filed notices of appeal on behalf of the remaining test case petitioners and he also filed an interlocutory appeal on behalf of norman and barbara adair the participating nontest case petitioners he represented izen purported to file his interlocutory appeal on behalf of not only the adairs but also on behalf of nontest case petitioners in more than docketed cases who had not participated in the evidentiary hearing and therefore were not included in this court’s certification order in date the defense fund acting through a five- person steering committee retained attorney michael louis minns minns to replace izen under the minns retainer agreement the defense fund agreed to pay minns an up-front nonrefundable fee of dollar_figure while minns agreed to a maximum fee for his firm of dollar_figure the fund also agreed to a dollar_figure fee for lawfinders associates inc lawfinders a firm hired by minns to assist in researching and writing his appellate briefs although minns replaced izen as counsel of record for the dixons jones and sticht filed interlocutory appeals on behalf of the other participating nontest case petitioners dufresnes owenses and hongsermeiers izen remained counsel of record for the youngs the only other remaining test case petitioners in january and date the hongsermeiers and nontest case petitioners hereafter the group of made contributions to the defense fund all but two in the amount of dollar_figure totaling dollar_figure in connection with the hiring of minns in addition from date through date the last full month during which the steering committee recognized minns as the fund’s counsel the hongsermeiers and members of the group of made smaller contributions to the defense fund totaling dollar_figure thus total contributions to the defense fund by the hongsermeiers and the group of from date through date amounted to dollar_figure the fund paid the aforementioned fees of dollar_figure and dollar_figure to minns and lawfinders respectively in early the steering committee became dissatisfied with minns and by letter dated date the defense fund formally requested porter hedges l l p porter hedges to take over the appeals and to represent the fund in the anticipated litigation involving our former attorney in this matter michael minns the ensuing engagement letter confirms that porter the fund paid other_amounts under the minns agreement including a dollar_figure fee to an accounting firm for which the hongsermeiers do not seek recovery hedges in addition to the appellate work would represent the committee with regard to counsel and assistance in terminating its relationship with its present lawyer michael louis minns and assist in obtaining a refund of attorneys’ fees and expenses paid to mr minns or at his direction the engagement is on an hourly fee basis with the defense fund agreeing to advance dollar_figure for application against expected billings three members of the steering committee--all nontest case petitioners--are jointly and severally liable for the defense fund’s obligations under the agreement which are not limited by the dollar_figure estimate and required advance from date to date the dixons and nontest case petitioners hereafter the group of --36 of whom are also part of the group of 112--made contributions to the defense fund all but three in the amount of dollar_figure totaling dollar_figure in connection with the hiring of porter hedges in addition from date through date members of the group of made smaller contributions to the defense fund totaling dollar_figure thus total contributions to the defense fund from date through date by the dixons and the group of amounted to dollar_figure porter hedges has received only dollar_figure from the defense fund to date with the last payment occurring in date although porter hedges attorneys henry binder binder and john a irvine irvine entered appearances in the court_of_appeals on behalf of the dixons dufresnes and owenses minns remained counsel of record for the hongsermeiers thus three sets of counsel pursued the appeals of the test cases izen on behalf of the youngs minns on behalf of the hongsermeiers and porter hedges on behalf of the dixons dufresnes and owenses hereafter the ph petitioners the court_of_appeals reversed and remanded holding that the misconduct of the government attorneys in the trial of the test cases was a fraud on the court for which no showing of prejudice is required see 316_f3d_1041 9th cir dixon v see also dixon v commissioner tcmemo_2006_ dixon vi determining the parameters of the illicit thompson settlement and extending the benefit thereof to all remaining kersting project petitioners in accordance with the mandate of the court_of_appeals in dixon v after the issuance of dixon v a group comprising the hongsermeiers and nontest case petitioners--35 of whom are also part of the group of and three of whom are part of the group of and the group of retained minns to continue representing their interests in post- appellate matters including this fee litigation the hongsermeiers and each member of the group of paid minns a dollar_figure retainer fee shortly after the issuance of dixon v the hongsermeiers and the ph petitioners filed separate requests with the court_of_appeals for attorney’s fees incurred on appeal the hongsermeiers’ request relates solely to services performed by minns and lawfinders and the ph petitioners’ request relates solely to services performed by porter hedges as filed both appellate fee requests relied exclusively on sec_7430 rather than filing a fee request with the court_of_appeals on behalf of the youngs izen objected to petitioners’ fee requests izen’s primary objection was that petitioners had not paid_or_incurred the amounts requested in actuality mr binder’s motion fails to reveal the true clients in interest who have paid him fees to represent their interests on appeal these real clients in interest are the same clients represented by joe alfred izen jr in the appeal styled barbara l adair et al v commissioner izen is not the only attorney in these proceedings who was at least initially hostile to petitioners’ appellate fee requests in a filing relating to the evidentiary hearing required to implement the primary mandate of dixon v jones who would subsequently file his own appellate fee request on behalf of the participating nontest case petitioners he represents see infra note remarked test case counsel exclusive of mr izen charged clients in excess of dollar_figure to copy mr izen’s mr jones’ and mr sticht’s prior work from the evidentiary hearing held in and without adding one new idea which had a substantial effect on the dixon appeal these taxpayers cannot afford to pay expensive lawyers by the hour in order to get the relief they so justly deserve izen then filed a motion in the adairs’ interlocutory appeal to transfer consideration of attorney’s fees on appeal to the tax_court see 9th cir r although the court_of_appeals promptly granted the motion izen waited more than years to file his appellate fee request with this court that fee request is currently pending and will be the subject of a later opinion see infra note on date the court_of_appeals acting through the panel that had decided dixon v issued the following order in response to petitioners’ appellate fee requests appellants’ request for attorneys’ fees on appeal is remanded to the tax_court for a determination of entitlement and if warranted amount although not required by this order an evidentiary hearing may aid the tax_court in making this determination the panel retains jurisdiction over all further proceedings that may arise thereafter petitioners’ counsel attempted unsuccessfully to retrieve from the court_of_appeals the documents relative to the appellate fee requests petitioners’ counsel and respondent’s counsel eventually filed in this court a special stipulation of facts concerning appellants’ request for attorneys’ fees on appeal the stipulation stipulating the authenticity of the appellate fee requests and all related objections oppositions replies and records attached as exhibits to the stipulation petitioners have largely pursued their appellate fee requests in this court on a joint basis in considering the appellate fee requests we solicited the parties’ views as to whether we were limited to sec_7430 cited in their requests or were instead free to proceed under sec_6673 on which we relied in dixon ivdollar_figure in a date order we expressed the view that there are substantial obstacles to awarding appellate fees and costs under sec_6673 shortly thereafter the youngs filed a motion in this court for attorney’s fees under sec_6673 relating to services performed and expenses_incurred by izen on appeal in date the ph petitioners amended their appellate fee request to assert entitlement under the bad faith exception to the so-called american rule hereafter the bad faith exception while continuing to rely on sec_7430 as an alternative grounddollar_figure by the amendment the ph petitioners also seek interest on the requested fees and expenses from date the date of the court of appeals’ dixon v opinion in an order dated date which we incorporate by reference and reproduce as appendix a we concluded that the sec_7430 contains certain conditions and limitations that do not apply to fee awards under sec_6673 see infra parts i a i c the american rule generally prohibits a federal court from awarding attorney’s fees in the absence of a statute or contract providing for a fee award 501_us_32 kennedy j dissenting citing 421_us_240 principles enunciated in cooter gell v hartmarx corp u s preclude us from awarding appellate fees and expenses under the bad faith exception to the american rule having determined to proceed under sec_7430 and with a nod to izen’s previous objection we ordered petitioners to submit net_worth affidavits for all real parties_in_interest with respect to their appellate fee requests namely those individuals who have made payments to porter hedges or michael minns p l c --through contributions to the atlas legal defense fund or otherwise--or are liable to porter hedges or michael minns p l c for the unpaid portion of the requested fees and expenses see rule b see also infra part i a meanwhile in an order dated date which we incorporate by reference and reproduce as appendix b we similarly rejected the youngs’ reliance on sec_6673 and ordered them to submit net_worth affidavits for all real parties in interestdollar_figure on date the ph petitioners filed a motion for reconsideration of our september order as well as a separate that order also pertains to a motion for appellate fees and expenses filed in this court in date by the participating nontest case petitioners represented by jones we subsequently informed the parties that we would handle that motion and the youngs’ appellate fee motion filed by izen separately from petitioners’ appellate fee requests to complete the story regarding appellate fee requests the court understands that sticht and respondent are working on a comprehensive stipulation and submission regarding requests for fees by participating nontest case petitioners represented by sticht motion for appellate attorney’s fees under sec_6673 we denied the motion for reconsideration by order dated date which we incorporate by reference and reproduce as appendix c we separately denied the ph petitioners’ motion for fees under sec_6673 f or the reasons discussed in our order dated date app b the hongsermeiers claim attorney’s fees of dollar_figure based on dollar_figure hours devoted to the appeal and dollar_figure hours devoted to the fee request and rates ranging from dollar_figure to dollar_figure per hour they have not requested any expenses other than attorney’s fees the ph petitioners claim attorney’s fees of dollar_figure based on dollar_figure hours devoted to the appeal and hours devoted to the fee request and rates ranging from dollar_figure to dollar_figure per hourdollar_figure they also claim other expenses of dollar_figure respondent does not dispute that fees relating to work on a fee request fees for fees or fees on fees are potentially recoverable under sec_7430 see eg huffman v commissioner 978_f2d_1139 9th cir affg in part and revg in part on other grounds tcmemo_1991_144 both fee requests include legal assistant or paralegal fees although sec_7430 does not specifically provide for the recovery_of such fees this court has routinely awarded them see eg 110_tc_94 and we have no reason to believe that the court_of_appeals for the ninth circuit would take a different approach cf 496_us_154 ndollar_figure equal_access_to_justice_act eaja case court’s hypothetical refers to paralegal fees even though the eaja from which sec_7430 derives does not specifically refer to such fees 239_f3d_1140 9th cir continued discussion i introduction a overview of sec_7430 sec_7430 provides that subject_to certain conditions a taxpayer who prevails against the government in any federal tax proceeding administrative or judicial may recover reasonable costs including attorney’s fees paid_or_incurred in connection with such proceeding if the government’s position in the proceeding was not substantially justified sec_7430 c b iii c a and b in its report accompanying the bill in which sec_7430 originated the house_committee_on_ways_and_means contemplated that such fee awards will enable individual taxpayers to vindicate their rights regardless of their economic circumstances h rept pincite a taxpayer seeking litigation costs under sec_7430 must have exhausted all available administrative remedies prior to litigation must not have unreasonably protracted the proceedings and if an individual must not have had a net_worth in excess of dollar_figure million as of the filing_date of the suit sec_7430 b c a ii see u s c sec d b i individual net_worth limitation continued eaja fee application included legal assistant fees no discussion of the issue although legal assistant and paralegal fees do not fit neatly within the category of either attorney’s fees or expenses we follow petitioners’ lead in grouping them with attorney’s fees contained in the equal_access_to_justice_act and incorporated by reference in sec_7430 reasonable attorney’s fees may not exceed the rate of dollar_figure per hour as adjusted for inflation unless a special factor such as the limited availability of qualified attorneys for such proceeding the difficulty of the issues presented in the case or the local availability of tax expertise justifies a higher rate sec_7430dollar_figure respondent publishes the inflation-adjusted rate cap on an annual basis the hourly rate cap for fees incurred in the earliest year for which petitioners claim fees is dollar_figure revproc_2001_13 2001_1_cb_337 the hourly rate cap for fees incurred between and is dollar_figure revproc_2001_59 2001_2_cb_623 revproc_2002_70 2002_2_cb_845 revproc_2003_85 2003_2_cb_1184 revproc_2004_71 2004_2_cb_970 the hourly rate cap for fees incurred in is dollar_figure revproc_2005_70 2005_47_irb_979 b tax court’s authority to award appellate fees under sec_7430 before we evaluate petitioners’ appellate fee requests under sec_7430 we address the threshold issue of our authority to the latter two examples of special factors were added by the internal_revenue_service restructuring and reform act of publaw_105_206 112_stat_727 effective for costs incurred after date id sec_3101 112_stat_729 all of the costs sought by petitioners were incurred after date award appellate fees under that sectiondollar_figure we begin by observing that the court_of_appeals cannot independently empower us to make such an award see 496_us_384 reversing that portion of court of appeals’ judgment remanding the case to district_court for award of appellate attorney’s fees as part of rule sanction that rule does not authorize district courts to award attorney’s fees incurred on appeal having said that we are satisfied that sec_7430 unlike the provision at issue in cooter gell authorizes trial courts such as the tax_court to award litigation costs incurred on appeal our conclusion that we may award appellate fees under sec_7430 ultimately rests on the distinction between fee awards such as those under sec_7430 authorized under fee- shifting rules that embody a substantive policy such as a we are hesitant to phrase the issue ie whether we can award appellate litigation costs under sec_7430 in terms of our jurisdiction see 541_us_401 equal_access_to_justice_act does not describe what classes of cases the court_of_appeals for veterans claims is competent to adjudicate rather it relates only to postjudgment proceedings auxiliary to cases already within that court’s adjudicatory authority see also kafka cavanagh litigation of federal civil tax controversies par pincite 2d ed tax court’s jurisdiction to consider a motion for litigation costs is part and parcel of its jurisdiction over the underlying action cf rule c recognizing that the tax court’s jurisdiction to review an administrative denial of administrative costs derives from sec_7430 references to rule are to rule of the federal rules of civil procedure statute which permits a prevailing_party in certain classes of litigation to recover fees 501_us_32 and fee awards such as those under rule the bad faith exception or sec_6673 that serve as sanctions the imposition of which depends not on which party wins the lawsuit but on how the parties conduct themselves during the litigation chambers v nasco inc supra pincite drawing the distinction in the context of the erie doctrine as applied to the bad faith exception see also 498_us_533 rule sanctions which are not tied to the outcome of the litigation do not constitute the kind of fee shifting at issue in 421_us_240 in cooter gell v hartmarx corp supra pincite the supreme court expressly recognized this distinction in the context of appellate fees as rule is not a fee-shifting statute the policies for allowing district courts to require the losing party to pay appellate as well as district_court attorney’s fees are not applicable the kind of fee shifting at issue in alyeska involved the substantive policy of encouraging private parties to bring suit to further broad public interests such as protecting the environment ie under the private attorney_general theory 495_f2d_1026 d c cir revd sub nom 421_us_240 the foregoing dictum from cooter gell regarding the authority of district courts to award appellate attorney’s fees under fee-shifting statutes is consistent with the supreme court’s approach in 496_us_154 issued week prior to cooter gell in jean the 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 see commissioner ins v jean supra pincite only one threshold substantial justification determination for the entire civil_action is to be made in so holding the court observed that while a ny given civil_action can have numerous phases the eaja--like other fee-shifting statutes--favors treating a case as an inclusive whole id pincite-dollar_figure to interpret a fee-shifting statute such as the eaja or sec_7430 as not authorizing a trial_court to award appellate attorney’s fees would be the court also noted that the eaja refers to an award of fees ‘in any civil action’ without any reference to separate parts of the litigation such as discovery requests fees or appeals commissioner ins v jean u s pincite emphasis added similarly sec_7430 refers to costs incurred in connection with such tax-related court_proceeding and sec_7430 defines court_proceeding as any civil_action brought in a court of the united_states including the tax_court without any reference to separate phases of the proceeding inconsistent with the unitary approach espoused by the court in jeandollar_figure c the other side of the coin inapplicability of sec_6673 and the bad faith exception the distinction between fee-shifting provisions and fee sanctions also informs our prior refusals to evaluate petitioners’ appellate fee requests under either sec_6673 or the bad faith exception each of which falls into the fee sanction category see apps a b c in contrast to the unitary approach adopted in the fee-shifting eaja case of commissioner ins v jean u s pincite under which only one threshold substantial justification determination for the entire civil_action is to be made the supreme court adopted a direct causation approach week later in cooter gell v hartmarx corp supra a case involving a fee sanction under rule there the court rejected the argument that the reference in rule as then in effect to fees and expenses_incurred because of the offending filing included fees incurred in defending a district court’s rule sanction on appeal we if the authority to award appellate fees under the eaja or sec_7430 resided exclusively in the appellate courts then there would be two substantial justification determinations whenever an appellate court applying the deferential abuse_of_discretion standard see 487_us_552 upholds the trial court’s determination in that regard ie with respect to an eaja or sec_7430 fee request pertaining to trial fees but reaches the opposite conclusion in disposing of a similar request for appellate fees in the same case believe rule is more sensibly understood as permitting an award only of those expenses directly caused by the sanctionable filing logically those at the trial level cooter gell v hartmarx corp u s pincite thus while jean contemplates that the recipient of an eaja fee award may recover fees incurred in defending the award on appeal without a separate showing that the government’s appeal of the award was not substantially justified the court in cooter gell concluded that a litigant defending a rule fee award on appeal may recover appellate expenses only when those expenses are caused by a frivolous appeal and not merely because a rule sanction upheld on appeal can ultimately be traced to a baseless filing in district_court id pincite the foregoing dichotomy suggests that a litigant who is entitled to attorney’s fees at the trial level on the basis of his opponent’s misconduct must in the absence of additional sanctionable conduct at the appellate level premise any claim for appellate fees on a fee-shifting prevailing_party provision because some fee-shifting provisions impose restrictions such as hourly rate caps that may not apply to fee sanctions such a litigant may find that his claims for attorney’s fees incurred during the trial and appellate phases respectively of the same litigation are subject_to markedly different rules that is the case here under sec_6673 we are authorized to sanction respondent for the attorney misconduct that marred the test case trial by charging him the full amount of petitioners’ attorney’s fees relating to the tax_court proceedings necessitated by that misconduct subject only to the requirement that such amounts have been reasonably incurreddollar_figure because that misconduct did not extend to the appellate proceedings petitioners are relegated to the applicable fee-shifting provision-- sec_7430 with its hourly rate cap and eligibility requirements--with regard to their appellate fee requestsdollar_figure cf 437_us_678 n ndollar_figure court separately analyzes fee awards ordered by the district_court and the court_of_appeals respectively whereas the trial court’s award was adequately supported by its finding of bad faith the appellate court’s award not supported by any finding of bad faith at the appellate level could only be sustained under the civil rights attorney sec_21 specifically sec_6673 provides that whenever respondent’s attorneys have unreasonably and vexatiously multiplied proceedings in this court the court may require the united_states to pay the excess attorney’s fees and other litigation costs reasonably incurred because of such conduct although we imposed substantial percentage reductions in our fee awards under sec_6673 in dixon iv those reductions were attributable to counsel’s various failures to substantiate their claims in their entirety we note further that sec_6673 by its terms appears to be limited to tax_court proceedings and inasmuch as petitioners filed their appellate fee requests with the court_of_appeals under sec_7430 our evaluation of those requests under sec_6673 or the bad faith exception arguably would be outside the scope of the court of appeals’ mandate cf 94_tc_595 fees awards act of crafaa see u s c sec a fee-shifting statute designed to encourage private enforcement of civil rights laws ii entitlement to relief under sec_7430 a respondent’s position respondent contends that petitioners are not entitled to any relief under sec_7430 because they have failed to demonstrate that they paid_or_incurred the claimed fees and expenses and respondent’s position on appeal was substantially justified b paid_or_incurred requirement overview unlike certain other fee-shifting statutes sec_7430 generally allows the recovery_of attorney’s fees only to the extent such amounts have been paid or incurreddollar_figure sec_7430 c b iii see 87_tc_838 distinguishing crafaa under which a court may allow the prevailing_party a reasonable attorney’s fee cf 489_us_87 fee award under crafaa is not limited to the amount the prevailing_party owes his attorney pursuant to contingent_fee agreement for purposes of sec_7430 fees are incurred when there is a legal_obligation to pay them e g grigoraci v commissioner but see sec_7430 providing an exception for pro bono services 122_tc_272 in that regard respondent notes that none of the steering committee members who are jointly and severally liable for the defense fund’s obligations to porter hedges is a party to the ph petitioners’ fee request similarly respondent asserts that t he hongsermeiers have failed to show that they as opposed to the atlas legal defense fund and or its steering committee members are personally liable for minns’s fees respondent further complains that the appellate fee requests are devoid of any evidence regarding the existence or amounts of petitioners’ contributions to the defense funddollar_figure real parties_in_interest under the real party in interest approach we adopted in our date order app a the fact that petitioners have not by and large paid_or_incurred the claimed fees and expenses does not render those amounts unrecoverable under sec_7430 as one commentator has recognized in the context of the eaja even though that statute states plainly that the award is to be made to the ‘prevailing party’ t his is not to say that the party named in the lawsuit is invariably the true litigant to whom an award is due sisk the essentials of the petitioners subsequently submitted schedules prepared by the business manager of the defense fund indicating that the hongsermeiers and the dixons contributed dollar_figure and dollar_figure respectively to the defense fund during the years respondent does not suggest that contributions to the defense fund cannot qualify as amounts paid for purposes of sec_7430 cf 951_f2d_1100 9th cir suggesting that fees requested under eaja may have been paid through contributions to multiemployer association equal_access_to_justice_act court awards of attorney’s fees for unreasonable government conduct part one la l rev see eg 951_f2d_1100 9th cir real parties_in_interest in eaja case included all members of multiemployer collective bargaining association who financed the litigation not just the members who were parties to the litigation the case for looking beyond the named parties is particularly compelling in these proceedings where similarly situated taxpayers not only shared the costs of the litigation but also had rights at stake in the case on the merits sisk supra pincite arguing that one can be a real party in interest with respect to an eaja fee request--and thereby potentially entitled to recover the requested fees--only by virtue of one’s status as a real party in interest in the underlying litigation on the merits ie that financial responsibility for the claimed legal fees does not confer real party in interest status dollar_figure we now hold that the real parties_in_interest in this litigation include not only the test case petitioners and participating nontest case petitioners but also all other conversely professor sisk reasons a real party in interest who has no financial responsibility for legal fees cannot recover those fees under the eaja for the simple reason that such person has not incurred any fees as required by the statute sisk the essentials of the equal_access_to_justice_act court awards of attorney’s fees for unreasonable government conduct part one la l rev remaining nontest case petitionersdollar_figure accordingly the relevant inquiry is not whether petitioners paid_or_incurred the claimed fees and expenses but whether the real parties_in_interest who did pay or incur those amounts satisfy the net_worth requirement it could be argued that only those nontest case petitioners who are bound by the outcome of this litigation ie those who entered into piggyback agreements should be considered real parties_in_interest cf 90_tc_1256 n refusing to fully reimburse petitioners’ claimed litigation costs when those costs clearly related to cases of similarly situated taxpayers--amway distributors--as well court notes that this case is not a ‘test case’ which the parties and the court agree to litigate in order to resolve an issue affecting many other taxpayers who agree to be bound by the result therein emphasis added however in dixon v commissioner tcmemo_2006_90 dixon vi we observe that the parties have agreed--and properly so--that the sanction imposed in dixon vi applies to benefit not only the test case petitioners but also to nontest case petitioners in all remaining docketed cases in the kersting project whether or not they signed piggyback agreements emphasis added we similarly draw no distinction between piggybackers and non- piggybackers for purposes of our real party in interest analysis imposed by sec_7430dollar_figure we address that issue in part iii f infra c substantial justification defense identifying the position_of_the_united_states in the proceeding under sec_7430 it is the position_of_the_united_states in the proceeding that is evaluated under the substantial justification standard typically the position_of_the_united_states in a judicial proceeding for purposes of sec_7430 is set forth in the commissioner’s answer to the petition e g 108_tc_430 these proceedings of course are anything but typical although these cases originated with petitions and answers in a tax_deficiency setting the appellate fees at issue are not directly related to those initial pleadings or the ensuing litigation on the merits rather the proceedings to in 407_fsupp2d_140 d d c the court concluded that the net_worth affidavits of the named plaintiffs in the underlying class action amply satisfy the net_worth requirements of the eaja statute for the entire class we note that the referenced class includes more than big_number claimants see id pincite 922_fsupp_489 d kan the eaja case cited by the norton court for support is similarly inapposite the court in olenhouse while recognizing that e ach party seeking an award must meet the relevant net_worth cap id pincite concluded that the named plaintiffs ie those who prosecuted the claim id pincite were the ones seeking the eaja award accordingly they alone were required to meet the net_worth requirement the court noted that the government has not shown that unnamed members of the class were willing and able to bear the cost of the litigation id that is not the case here which these fees relate involve the legal and factual issues raised by the misconduct of irs attorneys mcwade and sims in the original trial of the test cases accordingly we look to the misconduct inquiry as opposed to tax_deficiency phase of these proceedings to determine the position_of_the_united_states in the proceeding while the parties are in general agreement that the relevant position_of_the_united_states derives from the misconduct inquiry phase of these proceedings their respective submissions compel us to clarify exactly what it is we are testing against the substantial justification standard not surprisingly petitioners repeatedly draw our attention to the odious character of the attorney misconduct at the other end of the spectrum respondent emphasizes the inherent reasonableness of defending a trial_court victory on appeal in our view the issue is not whether the conduct of sims and mcwade was substantially justified it obviously was not nor whether respondent’s decision to defend his dixon iii victory against petitioners’ appeals as opposed to simply rolling over was substantially justified it obviously was rather our inquiry focuses on respondent’s litigating position regarding the legal effect of the attorney misconduct ie that such misconduct amounted to harmless error and therefore did not invalidate the decisions entered against the test case petitioners following the issuance of dixon ii substantial justification analysis we turn now to the issue of whether respondent’s position as identified above was substantially justifieddollar_figure a position_of_the_united_states in a judicial proceeding is substantially justified if it has a reasonable basis in law and fact e g maggie mgmt co v commissioner supra pincite common sense dictates that if the government was able to prevail at trial only to lose on appeal its position ordinarily will have been reasonable see h rept pincite stating that in such situation the appellate court would not normally award attorney’s fees to the taxpayer since the trial_court by definition had found the government’s position to be reasonable s comm on fin technical explanation of committee amendment cong rec same see also ness v commissioner aftr 2d pincite6 9th cir fact that the commissioner prevailed in the tax_court while not dispositive is significant on the other in the case of proceedings commenced after date the government bears the burden of establishing that its position was substantially justified sec_7430 see taxpayer bill of right sec_2 publaw_104_168 110_stat_1463 in the case of proceedings commenced on or before that date the taxpayer bears the burden of establishing that the government’s position was not substantially justified sec_7430 prior to amendment by the taxpayer bill of right sec_2 supra the parties apparently assume that the current rule applies to these cases while our resolution of the substantial justification issue would be the same regardless of which rule applies we are of the view that the relevant proceedings commenced prior to date cf supra note hand it is not always true that trial courts act on a soundly reasoned basis in every tax case 804_f2d_297 5th cir see also 34_fedappx_342 9th cir court_of_appeals had previously found clear error in the tax court’s findings on negligence issue which leads to the conclusion that the commissioner’s position was not substantially justified as noted above respondent took the position in dixon iii that the acknowledged attorney misconduct amounted to harmless error and this court agreed while we would like to think that we acted on a soundly reasoned basis in adopting respondent’s position the court_of_appeals in dixon v could not have been more clear in expressing and emphasizing its view that our holding in dixon iii did not have a reasonable basis in law the court_of_appeals began by stating we review the tax court’s refusal to grant a motion vacating a judgment on the basis of fraud on the court for abuse_of_discretion mindful that only when this court has a ‘definite and firm conviction that the tax_court committed a clear error of judgment in the conclusion it reached’ is reversal appropriate 316_f3d_1041 9th cir citations omitted the court_of_appeals quickly concluded because the tax_court applied the wrong legal standard it abused its discretion id specifically t he tax_court applied the wrong law when it imposed a requirement that taxpayers show prejudice as a result of the misconduct id taking our cue from henry v commissioner supra we conclude that given the foregoing language of the court_of_appeals in dixon v respondent’s position in dixon iii was not substantially justified cf 382_f3d_721 7th cir strong language against the government’s position in an opinion of a reversing appellate court discussing the merits of a key issue is evidence in support of an award of eaja fees d conclusion we conclude that petitioners are entitled to relief under sec_7430 iii amount of award a respondent’s position respondent argues that even if petitioners are entitled to relief under sec_7430 we should determine the amounts of their awards by giving effect to sec_7430’s hourly rate cap and by denying compensation_for services respondent alleges are redundant excessive and unnecessary b applicability of statutory rate cap the rate cap to which fee awards under sec_7430 are generally subject applies unless the court determines that a special factor such as the limited availability of qualified respondent does not quantify that argument in terms of noncompensable hours attorneys for such proceeding the difficulty of the issues presented in the case or the local availability of tax expertise justifies a higher rate sec_7430 not surprisingly petitioners urge us to lift the rate cap while respondent argues that we have no legal basis for doing sodollar_figure we begin by examining the three examples of special factors in the statute and then discuss other factors that courts have taken into account in this context limited availability of qualified attorneys the supreme court has narrowly interpreted the limited availability of qualified attorneys factor in the context of the eaja see 487_us_552 interpreting u s c sec d a ii dollar_figure specifically the court concluded that such language must refer to attorneys qualified for the proceedings in some specialized sense rather than just in their general legal competence we think it refers to attorneys having some distinctive knowledge or the hongsermeiers also argue that respondent’s calculation of the applicable_rate caps see supra part i a is erroneous they maintain that a 6-point increase in the relevant cpi figures ie from to requires a 6-percent increase in the statutory rate cap that argument is based on a misapprehension of the statutory adjustment formula it is the relative difference between cpi figures ie dollar_figure percent --not the arithmetic difference-- that determines the adjustment see sec_1 cross- referenced in flush language of sec_7430 the reasoning employed by the courts under the attorney’s fees provision of the equal_access_to_justice_act applies equally to review under sec_7430 huffman v commissioner f 2d pincite specialized skill needful for the litigation in question--as opposed to an extraordinary level of the general lawyerly knowledge and ability useful in all litigation examples of the former would be an identifiable practice specialty such as patent law or knowledge of foreign law or language id pincite applying that reasoning and leaving aside for the moment the issue of tax expertise we conclude that the general advocacy and case management skills of petitioners’ counsel while undoubtedly needful for the litigation do not justify a departure from the statutory rate cap under the limited availability of qualified attorneys exception however extraordinary in degree and limited in supply those skills may be cf 315_f3d_239 4th cir plaintiffs do not contend that expertise in class action enforcement and procedure is a ‘special factor’ warranting an increase in the statutory eaja maximum rate such expertise should certainly not be beyond that possessed or easily acquired by reasonably competent attorneys 867_f2d_1224 9th cir rejecting claim that considerable expertise in appellate see infra part iii b discussing the local availability of tax expertise factor we note that prior to the addition of that factor to sec_7430 in see supra note courts applying sec_7430 generally held that inasmuch as the provision applies exclusively to tax cases counsel’s tax expertise did not support the finding of a special factor see eg huffman v commissioner supra pincite 936_f2d_736 2d cir affg in part and revg in part on other grounds 93_tc_256 mcwilliams v commissioner tcmemo_1995_111 matters that would be necessary to successfully prosecute an appeal against the enormous resources of the federal government is a special factor under the eaja scarborough v nicholson vet app rejecting specialization in supreme court litigation as a special factor under the eaja local availability of tax expertise petitioners’ counsel do not fare any better with regard to this factor for the simple reason that tax expertise had little if anything to do with the misconduct inquiry phase of this litigation cf hyatt v barnhart supra pincite even if counsel’s expertise in social_security law could warrant a departure from the eaja hourly rate cap there has been no satisfactory showing that such expertise was necessary to handle the dispute interpretation of settlement agreement that actually gave rise to the award of attorneys’ fees and costs currently at issue thus while we do not question counsel’s tax expertise such expertise does not support the finding of a special factor under these circumstances difficulty of the issues petitioners assert that the misconduct inquiry phase of these proceedings presented difficult issues relating to procedural due process structural defect footnote nine error and standards of proof and review applicable to the doctrine_of harmless error petitioners point to dufresne v see 507_us_619 n commissioner f 3d pincite in which the court_of_appeals framed the issue as one of structural defect versus harmless error as giving rise to the need to address the specified difficult issuesdollar_figure the court_of_appeals however made no reference to any of those issues in its dixon v opinion rather the court_of_appeals focused solely on the issue of fraud on the court--specifically whether fraud on the court requires a showing of prejudice ie whether it is properly the subject of harmless error analysis the court’s 1-paragraph with accompanying footnote disposition of that issue see dixon v commissioner f 3d pincite n belies petitioners’ assertion that the relevant issues in the case were sufficiently difficult to justify a departure from the statutory rate cap cf golembiewski v barnhart f 3d pincite rejecting the district court’s contention that the complexity of the case warranted a finding of substantial justification under the eaja our opinion does not reveal a complex case a other possible special factors in general in 487_us_552 the supreme court recognized that the language of the eaja admits of other possible special factors in addition to the statutory example of in fairness to petitioners they took their cue from us in that regard we framed our analysis in dixon iii in terms of structural defect versus harmless error in response to dufresne limited availability of qualified attorneys after narrowly interpreting that factor the court continued for the same reason of the need to preserve the intended effectiveness of the then applicable dollar_figure cap we think the other special factors envisioned by the exception must be such as are not of broad and general application the novelty and difficulty of issues the undesirability of the case the work and ability of counsel and the results obtained are factors applicable to a broad spectrum of litigation they are little more than routine reasons why market rates are what they are the factor of customary fees and awards in other cases is even worse it is not even a routine reason for market rates but rather a description of market rates id pincite citations to pet for cert omitted although congress subsequently amended sec_7430 to include one of the factors specifically rejected by the court in pierce ie the difficulty of the issues see supra note there is no indication in the relevant legislative_history that the amending congress intended any broader retreat from the general principles expressed in the foregoing excerpt in the context of sec_7430 thus factors that are of broad and general application including the undesirability of the case work and ability of counsel and results obtained presumably remain insufficient justification for lifting the caps b the government’s misconduct it is certainly tempting to point to the attorney misconduct in this litigation as a special factor that justifies a departure from the hourly rate cap of sec_7430 support for that position may be found in 863_f2d_759 11th cir affd on other grounds sub nom 496_us_154 in which a divided panel of the court_of_appeals for the eleventh circuit concluded that the government’s misconduct can be a special factor under the eajadollar_figure the majority rejected the notion that the threshold reasonableness inquiry under the eaja precludes any further consideration of the government’s behavior as the dissent points out the eaja already requires that the government’s position have no ‘reasonable basis in law and fact’ as a condition_precedent to the recovery_of fees the eaja does not however protect a litigant against potential government harassment it is easy to imagine a situation where a position that is not ‘substantially justified’ is exacerbated by improper purposes in defending the lawsuit thus if the government in this case advanced litigation for any improper purpose such as harassment unnecessary delay or increase in the plaintiffs’ expense then consistent with pierce its action warrants the imposition of a special factor id pincite n see also 911_f2d_527 11th cir however the court_of_appeals for the fifth circuit explicitly rejected the jean analysis in 200_f3d_351 5th cir affg tcmemo_1998_176 reasoning that the finding of a special factor under sec_7430 based on the government’s misconduct would amount to an impermissible award of punitive_damages accord 936_f2d_736 2d cir the supreme court’s affirmance of jean is limited to the court of appeals’ holding that fees incurred in obtaining an eaja fee award are recoverable regardless of whether the government was substantially justified in opposing the initial fee request affg in part and revg in part on other grounds 93_tc_256 fields v commissioner tcmemo_2002_320 see also 254_f3d_233 d c cir eaja case we agree with the majority view and conclude that disregarding the sec_7430 rate cap on the basis of the attorney misconduct in this litigation would improperly add a punitive aspect to the fee award stated differently such an approach would blur the distinction between fee-shifting provisions and punitive measures that the supreme court has drawn in cases such as cooter gell v hartmarx corp u s pincite and chambers v nasco inc u s pincite see supra part i b as the dissent in jean v nelson f 2d pincite kravitch j dissenting observed in reasoning that government misconduct should not be treated as a special factor under the eaja rule sanctions are always available to compensate ‘a litigant whose opponent acts in bad faith in instituting or conducting litigation ’ here the acknowledged misdeeds of mcwade and sims have been the subject of sanctions under sec_6673 with respect to proceedings at the trial level see supra part i c such misconduct is relevant to our present task only in relation to the threshold issue under sec_7430 of whether respondent’s position regarding the legal ramifications of the misconduct was substantially justified see supra part ii c c the delay factor in 478_us_310 the supreme court held that a 30-percent increase in the lodestar amount of a title vii fee award to account for the delay factor violated the no-interest rule which prohibits the recovery_of interest in a suit against the government absent an express waiver of sovereign immunity with regard to interest two years later the court_of_appeals for the d c circuit concluded that the special factor provision of the eaja provides the express waiver of sovereign immunity required by shaw 844_f2d_867 d c cir the court therefore concluded that shaw is not inconsistent with the law of that circuit holding that delay may be regarded as a special factor under the eaja id see also 105_f3d_708 d c cir 943_f2d_1344 d c cir the courts of appeals for the fifth and eleventh circuits have sided with the d c circuit on the delay issue in the context of the eaja while the courts of appeals for the seventh and federal circuits have gone the other way compare 950_f2d_1066 5th cir agreeing with the d c circuit that e ven after the supreme court’s sweeping prohibition in shaw of interest awards against the united_states some forms of delay may justify enhancing the statutory base rate under the eaja and pollgreen v morris supra pincite citing wilkett but not shaw delay can be a special factor under the eaja if the length of the delay was excessive with 17_f3d_1033 7th cir 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 948_f2d_711 fed cir stating in dictum that the argument for delay as a special factor would not pass muster under shaw dollar_figure 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 pincite starr j dissenting from denial of rehg 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 67_f3d_112 ndollar_figure 5th cir the courts in marcus v shalala f 3d pincite and chiu v united_states f 2d pincite also contended that wilkett runs afoul of the supreme court’s subsequent admonition in pierce v underwood u s pincite 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 943_f2d_1344 d c cir clarifying that what makes the factor ‘special’ is not simple delay but unusual delay en_banc the panel’s decision is incompatible with the teachings of shaw okla aerotronics inc v united_states supra pincite williams j concurring and dissenting finding wilkett’s rationale far from clear masonry masters inc v nelson supra pincite henderson j concurring asserting that because the eaja lacks the express waiver contemplated in shaw fees awarded thereunder can never be enhanced for delay as a matter of law in shaw the supreme court rejected the argument that language in title vii making the government liable for costs including a reasonable attorney’s fee the same as a private person operated as an express waiver of sovereign immunity with respect to interest even though interest on attorney’s fees may be recovered in a title vii suit against a private employer in our view the case for waiver was stronger under the version of title vii at issue in shaw38 than it is under the eaja or by extension sec_7430 see 67_f3d_112 ndollar_figure 5th cir nothing in sec_7430 indicates that congress intended to waive its immunity from interest awards 992_f2d_766 8th cir same austin v commissioner tcmemo_1997_157 same see also intl woodworkers of am afl-cio local v donovan 792_f2d_762 9th cir pre-shaw no title vii has since been amended to expressly allow the recovery_of interest against the government in title vii actions see u s c sec 2000e-16 d 511_us_244 interest on eaja fee award since no statutory provision expressly authorizes such interest d test case status one aspect of this litigation that is certainly not of broad and general application and therefore potentially supports the finding of a special factor is its test case status undoubtedly counsel’s efforts have beneficially affected hundreds of nontest case petitioners at least one court however has explicitly rejected the notion that such widespread benefit may be treated as a special factor under the eaja see 911_f2d_527 11th cir pollgreen involved an eaja fee award to plaintiffs who had successfully challenged fines and property seizures stemming from their participation in the freedom flotilla of cuban refugees in the district_court had doubled the statutory rate in part because the litigation benefited not only the plaintiffs herein but a class of people including over big_number vessel owners id pincite see also 731_fsupp_1545 s d fla same language in another freedom flotilla case the court_of_appeals concluded that the district court’s consideration of the litigation’s benefit to a broad class of people is foreclosed by pierce’s prohibition on considering ‘the results obtained’ pollgreen v morris supra at dollar_figure in that regard we deem it noteworthy that pierce itself involved a class action in which plaintiffs’ counsel secured a dollar_figure million settlement against the department of housing and urban development that was paid to more than big_number low-income tenants of federally_subsidized housing projects see 547_fsupp_256 c d cal conclusion for the reasons discussed above we conclude that we are constrained to apply the statutory rate caps in determining the respective amounts of petitioners’ fee awards under sec_7430 c compensable hour sec_1 respondent’s objections a duplicative fees due to change_of counsel respondent argues that any fee award should exclude duplicative attorneys’ fees associated with two sets of appellate counsel having to read the same record and learn the same case while the inefficiencies associated with a change in counsel may in some instances warrant a reduced fee award see eg 852_f2d_762 4th cir we conclude that such a reduction would be inappropriate here as noted above more than nontest case petitioners have financed the test case litigation through contributions to the defense the court also cited jean v nelson f 2d pincite a class action involving haitian refugee claims in which it had rejected vindication of public rights as a special factor under the eaja fund it is hardly surprising that this group faced with the largely unfavorable outcome of dixon iii would fracture over the issue of legal representation going forward indeed given the number of contributors to the defense fund three sets of appellate counsel ie izen minns and porter hedges does not seem unreasonabledollar_figure therefore we shall not reduce the number of compensable hours merely to account for the fact that minns and porter hedges had to read the same record and learn the same case with which izen was already familiar b overstaffing respondent also asserts that it is apparent that these cases have been overstaffed by both mr minns and porter and hedges and that the number of hours charged by those firms for the appeal is excessive and outside the realm of reason in evaluating the reasonableness of the hours claimed we are aided by the fact that taking into account izen’s appellate fee request we have before us three separate fee applications relating to the same appellate proceedingsdollar_figure each of those applications contains a breakdown of hours devoted to various tasks as delineated in the ninth circuit’s form_9 regarding we note that three sets of counsel participated in the evidentiary hearing underlying our opinion in dixon iii as well izen jones and sticht although jones has also filed a motion in this court for appellate fees and expenses see supra note he did not directly participate in the appeals of the test cases as did izen what we deem to be the four core categories obtaining and reviewing records legal research preparing briefs and preparing for and attending oral argument izen claims dollar_figure hours minns claims dollar_figure hours including lawfinders’ time and porter hedges claims big_number hours while it may be somewhat presumptuous for this court to judge the relative merits of the appellate briefs we see no obvious justification for the significantly greater number of hours claimed by porter hedges in these categories assuming for these purposes that the subject hours claimed by izen and minns represent the low end and the midpoint respectively of the range of reasonableness we reduce the porter hedges figure by hours so that the we do observe that it was izen who hewed to the line that the misconduct of respondent’s attorneys was a fraud on the court and that the primary relief to which all eligible petitioners should be entitled is the benefit of the thompson settlement binder and minns argued primarily for the complete vacatur of this court’s decisions which would result in a complete win--no deficiencies--for the petitioners although binder did suggest the thompson settlement as an alternative in the light of hindsight izen’s approach has been vindicated the court_of_appeals in dixon v adopted both his diagnosis and his prescription without reservation having said that we do not mean to imply that all of izen’s appellate time was well spent he was the only attorney who continued to argue that the kersting tax_shelters created valid tax deductions a position not only contrary to the holdings of this court in dixon ii and dixon iii but also contrary to that of the court_of_appeals for the ninth circuit in the related promoter penalty case see 206_f3d_817 9th cir we also have the impression that considerable time was wasted at the appellate level in dealing with izen’s unsuccessful and unnecessary attempts to include hundreds of nontest cases in the adairs’ interlocutory appeal resulting figure hours for these categories is in line with the high end of the range of reasonableness c porter hedges client conferences respondent alleges that the ph petitioners have failed to demonstrate the reasonableness of charges for numerous conferences with various unidentified individuals apparently members of the steering committee our concern lies with the lack of subject matter descriptions for many of those conferences and other client communications such as e-mail correspondence as discussed above the committee hired porter hedges not only to replace minns but also to recover amounts previously paid to him we do not intend to hold the government responsible for fees attributable to the latter task in that regard the parties’ submissions indicate that binder assumed primary responsibility for the porter hedges briefs while irvine dealt with the minns situation and client relations in addition to overseeing work on the briefs most of the generic references to client contacts appear in irvine’s time entries and common experience suggests that such contacts were more likely related to the minns dispute or client relations than say appellate strategy nevertheless in the absence of subject matter descriptions we assume that the time irvine spent consulting with defense fund representatives was divided equally between matters relating to the minns dispute and client relations on the one hand and matters relating to the appeal on the other additional adjustments to time claimed for the appeals a missing minns time entries although minns claims dollar_figure hours of attorney and legal assistant time for his firm ie not including the lawfinders time in the hongsermeiers’ initial appellate fee request the accompanying time entries for minns and his in-house staff cover only dollar_figure hours inasmuch as those time entries run only through date they do not cover the final preparation of the brief apparently mailed on date the preparation of the reply brief or the oral argumentdollar_figure while we are not inclined to provide minns the opportunity to prove up his firm’s undocumented efforts at this late date we likewise are not prepared to disregard those efforts altogether accordingly we shall credit minns with the 66-hour block of time he categorized as preparing for and attending oral argument in his submission to the court_of_appeals and disallow the remaining dollar_figure undocumented hoursdollar_figure we note that there is no corresponding break in the bates numbering of the documents accompanying the parties’ special stipulation of facts filed in this court regarding the appellate fee requests only of those dollar_figure hours are attributable to minns the balance is attributable to his associate attorney and his legal assistant b minns hours relating to dispute with committee as stated above we will not hold the government responsible for fees attributable to the dispute between the steering committee and minns following the approach used above with regard to irvine’s time we assume that absent subject matter descriptions to the contrary the time minns and his staff spent during date and date communicating with clients was divided equally between damage control and matters relating to the appeal similarly we assume that time spent communicating with irvine during this contentious period was devoted to self defense and to coordination efforts in equal measure c additional porter hedges time relating to minns dispute we have previously dealt with irvine’s nondescriptive time entries relating to client communications we add here that consistent with our treatment of minns we assume absent subject matter descriptions to the contrary that time spent by irvine communicating with minns and his staff was divided equally between matters relating to the minns dispute and matters relating to the appeal we also disallow the relatively small amount of time irvine devoted to review of contracts as that task is clearly identifiable with his firm’s engagement by the steering committee to handle its dispute with minns d porter hedges time relating to bill of costs porter hedges claims approximately hours of attorney time most of it binder’s relating to a bill of costs in the amount of dollar_figuredollar_figure see fed r app p we see no justification for the devotion of that much time to a task normally considered ministerial in that regard we note that minns has not claimed any time relating to the bill of costs he filed on behalf of the hongsermeiers we disallow all but hours of attorney time relating to the ph petitioners’ bill of costs e porter hedges time relating to remand a few of binder’s time entries describe time spent analyzing the illicit thompson settlement shortly after the court of appeals’ issuance of dixon v as those entries relate to the ensuing remand proceedings in this court they are not properly the subject of an appellate fee request see supra text accompanying note a adjustments to porter hedges time relating to fee request initial research time according to the porter hedges time entries four attorneys spent hours researching sec_7430 and attorney’s fees issues and memorializing that research before the court_of_appeals ultimately allowed dollar_figure of such costs work on the actual fee request even began that seems excessive to us and we accordingly reduce those hours by percent b time relating to unsuccessful claims all of the adjustments we have made thus far relate to either documentation or what may be termed the efficiency aspect of the reasonableness standard incorporated into sec_7430 in 461_us_424 a case involving crafaa the general civil rights fee-shifting statute the supreme court addressed another aspect of reasonableness in this context if a plaintiff has achieved only partial or limited success the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive_amount that the plaintiff is a prevailing_party therefore may say little about whether the expenditure of counsel’s time was reasonable in relation to the success achieved professor sisk sometimes refers to this aspect of the reasonableness standard as the limited success factor sisk the essentials of the equal_access_to_justice_act court awards of attorney’s fees for unreasonable government conduct part two la l rev the supreme court subsequently referred to the limited success factor in the context of fees for fees ie fee sec_46 the standards set forth in this opinion are generally applicable in all cases in which congress has authorized an award of fees to a ‘prevailing party ’ 461_us_424 n incurred in obtaining a fee award in 496_us_154 as discussed in part i b supra the court in jean held that fees for fees are recoverable under the eaja without a separate showing that the government’s opposition to the fee award was not substantially justified in response to the government’s argument that such a holding would have the effect of allowing an automatic award of ‘fees for fees’ id pincite the court stated because 461_us_424 requires the district_court to consider the relationship between the amount of the fee awarded and the results obtained fees claimed for fee litigation should be excluded from the award to the extent that the applicant ultimately fails to prevail in such litigation for example if the government’s challenge to a requested rate for paralegal time resulted in the court’s recalculating and reducing the award for paralegal time from the requested amount then the applicant should not receive fees for the time spent defending the higher rate id pincite n the court_of_appeals for the ninth circuit has expressly held that the legal principles for recovering attorney’s fees laid out in hensley citation omitted apply to requests for fees-on- fees 45_f3d_1365 9th cir see also 154_f3d_986 9th cir while it is often difficult to allocate attorney time between successful and unsuccessful issues and claims denial of a particular form or aspect of relief occasionally may be attributable to a discrete motion or proceeding thus allowing the limited success factor to be measured by hours devoted to that effort sisk la l rev pincite see also hensley v eckerhart supra pincite 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 to avoid the sec_7430 rate cap by asserting entitlement under the bad faith exception and sec_6673 and to obtain interest on their fee award see infra part iv specifically the ph petitioners’ date amendment of their fee request and the prerequisite motion for leave to amend their motion for reconsideration of our date order and their date request for appellate fees under sec_6673 pertain exclusively to those unsuccessful claims we therefore disallow the hours porter hedges devoted to those filingsdollar_figure cf 982_f2d_586 d c cir 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 we do not intend to suggest thereby that the positions taken in those filings are in any way frivolous see hensley v eckerhart supra pincite partial or limited success must be taken into account even though the unsuccessful claims are nonfrivolous and raised in good_faith d computation of potentially compensable fees we now determine the amount of claimed fees that to the extent paid_or_incurred by real parties_in_interest who satisfy sec_7430’s net_worth requirement hereafter eligible persons see infra part iii f are compensable under sec_7430 where the fee requests reflect the use of block billing ie the assignment of multiple discrete tasks to a single block of time we use our best judgment to allocate the aggregate amount of time among the various tasks a the hongsermeiers--work on the appeal48 taking into account the dollar_figure rate cap in effect for the hongsermeiers claim dollar_figure hours at dollar_figure per hour hours at dollar_figure per hour and dollar_figure hours at dollar_figure per hour regarding the 50-percent reduction for time deemed attributable to both the dispute with the steering committee and the appeal we have assigned hours in december to client communications minns hours associate attorney hours legal assistant hours we therefore reduce the dollar_figure minns time by dollar_figure hours of leaving dollar_figure hours reduce the dollar_figure associate time by dollar_figure hours of leaving because the defense fund retained minns to pursue the appeal and a separate group subsequently retained him to pursue appellate fees we compute the potentially compensable fees with respect to those two engagements separately the hongsermeiers claim dollar_figure for work on the appeal and dollar_figure for work on the fee request dollar_figure hours and reduce the dollar_figure legal assistant time by hours of leaving dollar_figure hours the resulting amount is dollar_figure determined as follows dollar_figure x dollar_figure dollar_figure x dollar_figure dollar_figure x dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure b taking into account the dollar_figure rate cap in effect for the hongsermeiers claim dollar_figure hours at dollar_figure per hour hours at dollar_figure per hour and dollar_figure hours at dollar_figure per hour of the dollar_figure hours disallowed due to missing time entries hours relate to dollar_figure time hours relate to dollar_figure time and dollar_figure hours relate to dollar_figure time regarding the 50-percent reduction for date time deemed attributable to both the rift with the steering committee and the appeal we have assigned hours to client communications minns hours legal assistant hours and hours to irvine communications minns hours legal assistant hour we therefore reduce the dollar_figure minns time by an additional hours of and reduce the dollar_figure legal assistant time by an additional hours of that leaves dollar_figure hours of dollar_figure time dollar_figure - - hours of dollar_figure time - and dollar_figure hours of dollar_figure time dollar_figure - dollar_figure - the resulting amount is dollar_figure determined as follows dollar_figure x dollar_figure x dollar_figure dollar_figure x dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure c total the total amount of potentially compensable fees with respect to the hongsermeiers’ fee request for work on the appeal is dollar_figure dollar_figure for and dollar_figure for a the hongsermeiers-work on the fee request to taking into account the dollar_figure rate cap in effect during the years through the hongsermeiers claim dollar_figure hours at dollar_figure per hour dollar_figure hours at dollar_figure per hour hours at dollar_figure per hour and dollar_figure hours at dollar_figure per hour the resulting amount is dollar_figure determined as follows dollar_figure x dollar_figure dollar_figure x dollar_figure x dollar_figure dollar_figure x dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure b taking into account the dollar_figure rate cap in effect for the hongsermeiers claim hours at dollar_figure per hour hours at dollar_figure per hour and hours at dollar_figure per hour the resulting amount is dollar_figure determined as follows x dollar_figure x dollar_figure x dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure c application of limited success factor while the hongsermeiers did not join in the ph petitioners’ unsuccessful fee request claims discussed in part iii c b supra that does not mean that hensley’s limited success factor has no application to their claim for fees on fees as professor sisk observes because ordinarily it is difficult to precisely link a certain segment of legal services to the denial of particular relief the limited success factor typically is addressed at a separate stage through a percentage downward adjustment of the lodestar sisk la l rev pincite see also hensley v eckerhart u s pincite in applying the limited success factor a court may attempt to identify specific hours that should be eliminated or it may simply reduce the award to account for the limited success here the lodestar for the hongsermeiers’ fees on fees is dollar_figure dollar_figure for through and dollar_figure for in determining the degree of success they achieved with regard to their fee request we compare the number of merits hours they claimed ie hours relating to the appeal--930 with the number of merits hours we have allowed dollar_figure see 45_f3d_1365 9th cir upholding district court’s award of percent of requested fees on fees to reflect the parties’ 2-percent settlement with regard to requested merits fees 790_f2d_753 9th cir upholding district court’s award of percent of requested fees on fees to reflect its award of percent of requested merits fees the see supra parts iii d a and iii d b dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure we compare merits hours claimed to merits hours allowed rather than merits fees claimed to merits fees awarded because much of the difference between the merits fees claimed and the merits fees awarded in this case is attributable to sec_7430’s rate cap the effect of which is already reflected in the fees on fees lodestar amount of dollar_figure resulting success ratio is dollar_figure percent which we apply to the aforementioned lodestar to obtain the amount of potentially compensable fees on fees with respect to the hongsermeiers’ fee request dollar_figuredollar_figure a the ph petitioners taking into account the dollar_figure rate cap in effect for the ph petitioners claim dollar_figure hours at dollar_figure per hour dollar_figure hours at dollar_figure per hour and hours at dollar_figure per hour we begin by allocating to a portion of the 130-hour overstaffing reduction discussed above based on the porter hedges time entries we estimate that percent of the hours devoted to tasks described in the core categories of the ninth circuit’s form_9 see supra part iii c b are attributable to services performed in accordingly we reduce the time claimed for by hours of since more than percent of the time claimed for falls into the dollar_figure category we further allocate the entire 13-hour reduction to the dollar_figure time next we apply the 50-percent reduction to irvine’ sec_2001 time deemed attributable to both the minns dispute and the appeal in we note here that even though petitioners did not receive all the relief they requested on appeal see supra note we see no need to reduce their merits fees awards by applying a success ratio see hensley v eckerhart u s pincite ndollar_figure where plaintiff obtains excellent results fee award will normally encompass all hours reasonably expended on the litigation fact that such plaintiff did not receive all the relief requested is not necessarily significant that regard we have assigned hours to generic client communications and hours to minns communications we therefore reduce the dollar_figure time by an additional hours of finally we have assigned dollar_figure hours to irvine’s review of contracts and further reduce the dollar_figure time by that amount the end result is a 75-hour reduction in the dollar_figure time dollar_figure leaving hours of dollar_figure time the resulting amount is dollar_figure determined as follows x dollar_figure dollar_figure x dollar_figure x dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure b to taking into account the dollar_figure statutory rate cap in effect during the year sec_2002 through the ph petitioners claim dollar_figure hours at dollar_figure per hour hour at dollar_figure per hour hours at dollar_figure per hour hours at dollar_figure per hour hours at dollar_figure per hour hour at dollar_figure per hour and hours at dollar_figure per hour we adjust the dollar_figure time to reflect the following reductions remainder of the 130-hour overstaffing reduction- -117 hours irvine’s time deemed attributable to the minns dispute--7 hours excessive time pertaining to the bill of costs--28 hours work attributable to the remand proceedings- we have assigned hours of irvine’ sec_2002 time to generic client communications hours and minns communications hours as we deem percent of that time to be attributable to the minns dispute the resulting reduction is hours of -7 hours excessive preliminary research regarding sec_7430 and attorney’s fees issues--42 hours x and time devoted to unsuccessful fee request claims--123 hours hours of binder’s time and hours of irvine’s time the end result is a 327-hour reduction in the dollar_figure time leaving dollar_figure hours of dollar_figure time the resulting amount is dollar_figure determined as follows dollar_figure x x dollar_figure x dollar_figure x dollar_figure x dollar_figure x dollar_figure x dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure c taking into account the dollar_figure rate cap in effect for the ph petitioners claim hours at dollar_figure per hour and hours at dollar_figure per hourdollar_figure the resulting amount is dollar_figure determined as follows x dollar_figure x dollar_figure dollar_figure dollar_figure dollar_figure d total the total amount of potentially compensable fees with respect to the ph petitioners’ fee request is dollar_figure in their final submission of fees and expenses the ph petitioners seek to recover an additional dollar_figure that porter hedges estimates it will incur in pursuing the fee request until this court rules on this motion we are not aware of any authority supporting such a request nor do we see the need for such additional fees and expenses under the circumstances dollar_figure for dollar_figure for through and dollar_figure for e potentially compensable expenses the ph petitioners claim additional costs in the amount of dollar_figure we reduce that amount by dollar_figure as follows delivery charges dollar_figure overnight deliveries to from persons with no identifiable connection to the litigation-- dollar_figure extra charges for a saturday package pickup--dollar_figure discrepancy between claimed courier charge and computer backup--dollar_figure computer research dollar_figure difference between amounts charged by provider and amounts reflected in billing records--dollar_figure unidentified research sessions--dollar_figure secretarial overtime dollar_figure double-counted charges dollar_figure to miscellaneous dollar_figure various tips --dollar_figure unidentified parking charge--dollar_figure the amount of potentially compensable expenses with respect to the ph petitioners’ fee request is therefore dollar_figure as indicated above the hongsermeiers have not requested any expenses other than attorney’s fees f amounts paid_or_incurred by eligible persons we now determine the extent to which eligible persons paid_or_incurred the potentially compensable fees and expenses with respect to the fee requests a amounts paid through the defense fund minns agreement the defense fund paid dollar_figure in legal fees under the minns agreement of the dollar_figure claimed by the hongsermeiers for the corresponding legal services see supra note dollar_figure is potentially compensable see supra part iii d meaning that dollar_figure is noncompensable dollar_figure - dollar_figure dollar_figure given the fungibility of money a case can be made for allocating the fund’s dollar_figure expenditure between the potentially compensable fees and the noncompensable fees on a pro_rata basis we are not aware of any authority requiring us to do so and we think such an approach would run counter to the remedial purpose of sec_7430 accordingly we allocate the first dollar_figure of the dollar_figure expenditure to the potentially compensable fees and the remaining dollar_figure dollar_figure - dollar_figure dollar_figure to the noncompensable fees next we must identify the contributions to the defense fund from which the fund’s dollar_figure expenditure derived owing again to the fungibility of money any methodology we use will be somewhat arbitrary nevertheless we believe it is reasonable to treat the dollar_figure expenditure as having derived from the dollar_figure contributed to the fund by the hongsermeiers and the group of from date through date the following table lists the persons described in the preceding paragraph ie the hongsermeiers and the group of for whom we have received net_worth affidavits together with the amount contributed by each such person to the defense fund during the relevant period name arbuckle asmus baccitich bakos beecher berger boettger bowersox branch bremner brown bruckner croft doyle ellis evans flatter fraser fruchnicht fusakio gaubert gavagan geisler graham hague hannan hartigan hatcher heintz hendrickson hillen hinrich hongsermeier howell humphries hunt jensen john jensen steen johnson marvin jurewicz keadle amt contributed dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure kelley klasch krassner layman leslie maeda mcnamee meyners michaelson miller dale miller r b millon muckle myers norrell oakes oyler pistoll porter proctor pylate richmond satterfield sheasley st john tice toman tynan villines watkins whittlesey wiater wilson dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure thus at least dollar_figure of the dollar_figure contributed to the defense fund by the hongsermeiers and the group of between date and date derives from eligible persons we refer to such contributions as eligible contributions here too a case can be made for allocating the eligible contributions between the defense fund’s dollar_figure payment for potentially compensable fees and its dollar_figure payment for noncompensable fees on a pro_rata basis again we are not aware of any authority requiring us to do so and we think such an approach would run counter to the remedial purpose of sec_7430 accordingly we allocate the eligible contributions first to the defense fund’s dollar_figure payment for potentially compensable fees it follows that eligible persons paid all of those potentially compensable fees b porter hedges agreement we take a similar approach with regard to the dollar_figure the defense fund paid to porter hedges of the dollar_figure claimed by the ph petitioners in their appellate fee request dollar_figure is potentially compensable see supra parts iii d iii e first we allocate the entire dollar_figure expenditure to the potentially compensable fees and expenses next we identify the contributions to the defense fund from which the fund’s dollar_figure expenditure derived we believe it is reasonable to treat the dollar_figure expenditure as having derived from the dollar_figure contributed to the defense fund by the dixons and the group of from date through date the following table lists the persons described in the preceding paragraph ie the dixons and the group of for whom we have received net_worth affidavits together with the amount contributed by each such person to the defense fund during the relevant period name asmus bakos beecher brown bruckner croft dixon ellis gomes grippo hague hartigan hatcher heintz hillen hunt ingals johnson marvin johnson m p jurewicz keadle klasch leslie mcnamee meyners miller r b moore l norrell oyler pistoll porter pylate richmond satterfield st john tice tynan villines whittaker whittlesey amt contributed dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure dollar_figure thus at least dollar_figure of the dollar_figure contributed to the defense fund by the dixons and the group of between date and date derives from eligible persons again we allocate the eligible contributions first to the fund’s dollar_figure payment for potentially compensable fees and expenses it follows that eligible persons paid dollar_figure of the potentially compensable amount of dollar_figure amounts paid directly to minns the hongsermeiers and each member of the group of paid minns a dollar_figure retainer fee for continued representation of their interests in post-appellate matters including services relating to the hongsermeiers’ appellate fee request we have received net_worth affidavits for all but five of those persons thus at least dollar_figure of the dollar_figure initially paid_by this group to minns derives from eligible persons we allocate that dollar_figure first to the dollar_figure claimed by the hongsermeiers for services relating to the fee request see supra note it follows that eligible persons paid the entire portion of the claimed amount that is potentially compensable--dollar_figure see supra part iii d amounts incurred but not paid while eligible persons have paid all the potentially compensable fees with respect to the hongsermeiers’ fee request thus obviating the need to determine whether eligible persons are liable for any unpaid amounts eligible persons have paid only dollar_figure of the dollar_figure that is potentially compensable with respect to the ph petitioners’ fee request under the terms of the defense fund’s agreement with porter hedges nontest case petitioners darrell hatcher now deceased robert norrell and don hunt are jointly and severally liable for the fund’s obligations under the agreement which would include the remaining potentially compensable fees and expenses of dollar_figure dollar_figure - dollar_figure dollar_figure since we have received net_worth affidavits for messrs norrell and hunt it follows that eligible persons are liable for and therefore incurred the remaining potentially compensable fees and expenses of dollar_figuredollar_figure summary eligible persons have paid_or_incurred all the potentially compensable amounts with respect to the appellate fee requests g final figures we shall award attorney’s fees in the amount of dollar_figure dollar_figure paid through the defense fund and dollar_figure paid outside the defense fund in respect of the hongsermeiers’ appellate fee request and attorney’s fees and respondent does not suggest nor do we have any reason to believe that the disproportionate liability of messrs norrell and hunt is not bona_fide cf sisk the essentials of the equal_access_to_justice_act court awards of attorney’s fees for unreasonable government conduct part one la l rev discussing the potential for manipulation of the eaja eligibility requirements when counsel represents both eligible and ineligible parties expenses in the amount of dollar_figure in respect of the ph petitioners’ appellate fee requestdollar_figure iv interest the ph petitioners seek interest on their fee award from date the date of the court of appeals’ dixon v opinion as discussed in part iii b c supra the no- interest rule prohibits the recovery_of interest in a suit against the government absent an express waiver of sovereign immunity from an award of interest library of congress v shaw u s pincite sec_7430 contains no such express waiver see wilkerson v united_states f 3d pincite n miller v alamo f 2d pincite austin v commissioner tcmemo_1997_ and petitioners do not point to any other provision that might fit the bill cf miller v alamo supra pincite rejecting the argument that u s c sec c operates as an express waiver of sovereign immunity from interest on a sec_7430 fee award accordingly we deny the ph petitioners’ request for interest on their fee awarddollar_figure we shall address the manner in which the awards are to be administered in a separate order or orders implementing this opinion in that regard we note that some nontest case petitioners who contributed to the defense fund during the relevant period have not been asked to submit net_worth affidavits and therefore have not had the opportunity to establish their right to share in the awards we recognize that in dixon iv we granted postjudgment interest on petitioners’ sec_6673 fee award we did so sua sponte on the basis of this court’s inherent power to protect its own proceedings from abuse oppression and continued to reflect the foregoing appropriate orders will be issued continued injustice without the benefit of briefs on the subject whatever one’s views may be on the interrelationship between the doctrines of inherent authority and sovereign immunity compare 29_f3d_754 1st cir with 9_f3d_774 9th cir that issue is not presented here appendix a--date order -74- -76- -78- appendix b--date order -80- -82- -84- appendix c--date order -86- -88- -90- -92- -94- -96-