-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).
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