Betty W. Thompson - Page 13

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          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).                          




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