-13- fees or incurred an obligation to pay them. Id. at 845-846 (plain language of section 7430 indicates that recovery is limited to actual expenditures).9 The Court has observed that the meaning of "incurred" in the context of section 7430 is "'to become liable or subject to: bring down upon oneself.'" Id. at 846. In analogous circumstances, it has been held that fees are incurred when there is a legal obligation to pay them. United States v. 122.00 Acres of Land, 856 F.2d 56 (8th Cir. 1988) (applying sec. 304(a)(2) of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. sec. 4654(a); fees must be "actually incurred"); accord SEC v. Comserv Corp., 908 F.2d 1407, 1414 (8th Cir. 1990) (construing the EAJA to a similar effect). The fact that petitioner here may have "retained" and was represented by attorneys and other professionals in the administrative and judicial proceedings is not sufficient to meet the requirements of section 7430. See, e.g., Unification Church v. INS, 762 F.2d 1077, 1082-1083, 1092 (D.C. Cir. 1985) 9There is a well-recognized exception (not pertinent here) to this requirement in proceedings under the EAJA. In light of the legislative history of the Act and for reasons of public policy, parties who are represented by a legal services organization or by an attorney pro bono are not precluded from an award of fees and costs under the EAJA. Awards are routinely made in those circumstances even though the claiming party did not pay or incur fees. See, e.g., Phillips v. GSA, 924 F.2d 1577, 1582-1583 (Fed. Cir. 1991); SEC v. Comserv Corp., 908 F.2d 1407, 1415 (8th Cir. 1990); American Association of Retired Persons v. EEOC, 873 F.2d 402, 406 (D.C. Cir. 1989); Watford v. Heckler, 765 F.2d 1562, 1567 n.6 (11th Cir. 1985).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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