roberts or nearly forty years now and on the bottom line is we have not been paid it is undisputed that the government the administrator of the f a a brought this action without substantial justification is undisputed that james roberts was the prevailing party the only issue before this court is a very issue narrow issue and that question is whether mr roberts incurred our fees and expens s i have three reasons why we should be paid in this case let me ask you a question at the outset what do you believe the definition of him her you i believe the definition of incurred he's either legally obligated to pay or having a relationship with an attorney in so the case law is clear that you do not have to have a legal obligation to pay the interning for instance there are pro bono cases where groups money now i'm not sure that's exactly been proven in all of those cases i don't think that was an issue because what the courts focus on is the purpose of each and the purpose of the ija is encourage relatively poor individuals like mr james roberts to defend himself against government oppression and injustice which is exactly what happened in this case that mr anderson and i ca put cases where in fact attorneys are i'm not sure because i cited as attorney client but any services provided in the state of alabama where individual except that benefit no one which is exactly claim as a matter of fact under alabama law i could bring a suit against mr roberts tomorrow and and he would be legally obligated to pay me for those fees the problem is  think i've been in situations where i have not had an engagement letter i have not had a contract and yet i was entitle to my fees in so it is under the law once you accept this benefit which mr roberts did we tried this case for four days this case has been going on we have to try again to different cities we represented mr roberts for the exact purpose that each one was an active we represented mr roberts because this was an injustice his livelihood was being taken away they took away his mechanic certificates is the only way he was able to provide for his family and mr anderson and i saw this injustice occurring and we did what i think all the lawyers are supposed to do and we came in to try to help out in this situation law dictionary definition of incurred and said that that means we go obligation when they stop there and say that that's really the only thing that matters and they recognize that there might be an exception in some other additional legal areas number one they did not define incurred correctly they left it would just be legal obligation and there are exceptions to that where once there is a relationship it is incurred and secondly and the department of justice recognize that if in fact we would have done this pro bono from the outset if we would have agreed to do that we would have waived any right for instance let's say mr roberts would have when for a lottery tomorrow my forest as a lawyer to say you do not have to pay me for the amounts that i am owed because i recognize that you can't afford me right now where it's been nearly five years where the company has not paid us the company put in an affidavit which said i have no express agreement to take them to buy them they have not indemnified them so even under alabama law let's say the company did other it which we did not admit and they did not agree but even if they did james roberson jointly and severally liable for this if the company did not honor if they breached any indemnity agreement with james roberts in so morning respect the company you know you're the company's not party here and no i don't have a contract with them there's potentially statute of frauds problems with the company in this situation in so this would be a much more complex analysis some things that were also darby aviation it was going to burn we're not asking for any of those fees in this situation we're asking for the fees for defending james roberts i see that my time is up to the of the repo right miss but new this morning sun you may feel for the governments the applicant in this case like the applicant in the case of him right as you were just and tell you on the panel has not demonstrated that it is he and not someone else who incurred the fees in least the portion of it that the quote that the court quoted didn't provide anything as far as who was responsible for payment for the services now of course that were noted that the invoices in that case had been sent to the father but the court said specifically that there was no evidence that exactly the point the evidentiary burden to show that an applicant is eligible for fees is not onerous and it serves an important purpose it's reasonable for the government to ask before spending public money for an applicant to show what it was at the time of the that doesn't change anything goes your honor finishing your question if the company is obligated to pay the fees mr roberts is still ineligible for an ija award both because the company of course is not a party to this proceeding and it's only a party who may claim and because then mr robertson self would have no liability to pay the attorneys and that's again this is this is what the n r a ascii case stands for is a well mark meaning third party benefactor picks up the tab for attorney's fees bono counsel to be paid there is no legal obligation at all when in fact the court serves two or three times in the pinion that we know that they recognize that there is no legal obligation to pay here but yes that's the definition that the board the doc isn't that squarely at odds with or precedent and therefore legal where you know your honor and i think there's two ways to understand the pro bono cases either of which direct that the petition for review here he denied number one it's very clear in all of the pro bono cases that the overriding intent to congress and enact in ija was to purge encourage pro bono representation and so as a categorical matter because of the legislative intent of congress when a party is represented pro bono clearly that is a situation where nature war should be available as far as the legal obligation i agree with you that at the end of the day one council is representing a party pro bono that no one in the end writes a check but it's perfectly clear who would be responsible for paying council if at the end of the day there was a bill that is unlike the situation where as the board observed the record was missing any direct statement by all agreements signed by mr roberts if a lawyer takes one the client there's either one of two things one more he or she is representing the client pro bono or he or she is expecting to be paid ok if there no evidence that this was a pro bono representation then than it has to be the second circumstance then if there is no evidence that the company is paying this or has agreed to pay  then what more do we need your honor respectfully ija is quite clear it is the applicants first to show that he has incurred fees and expenses he and not someone else the record in this proceeding did not support merits proceeding and it is of course the fees that are heard past tense in connection with that proceeding that triggered the possibility of any each oh ward in forcing a rule that word buyers were there for they've it's supposed to say that they d think your honor i hesitate to speculate but i think of what you're saying that then you're saying that they weren't sufficient tell me why they weren't sufficient for two reasons your honor one for the reason that i just explained because they were silent as to what the understanding of the parties was during the underlying merits proceeding and in light of all of the other evidence in the record evidence that on invoices darby was listed as the clients that invoices were mailed to darby actually addressed to darbyville darby for work done for mr roberts still mr roberts burden of legal fees in advance through his insurance premiums or union dues that was the court's holding and i have heard it well son and that simply again is unlike this case here like in re s c we have an applicant who has not demonstrated that extent of an applicant's burden can of course be contingent but the point is at the end of the day in those cases there is an understanding that if each if he is obtained it will be turned over to counsel that understanding is absen before the board adequate evidence for the board to conclude that under the circumstances it was a mutual intent to agree between he and his attorney not he and his and not is trainee of his employer or he and his employer or any other combination we might be able to come up with that simply is not enough and requiring that parties show at the time of the underlying merits proceeding with their understanding was as far as fear arrangements is important because it discourages gamesmanship from parties who might perhaps recover no your honor that's not at all what we're saying and that's not what the board sads what was required here was a clear showing knots and the view isn't inconsistent invoice is not a record that couldn't answer the question of who did what for whom and who out for it why light of all of the evidence that was before the board in this case even if they had attempted to hypothesize what an alabama state court would have concluded they could not find based on substantial evidence that mr roberts had incurred the firm's fees and men very briefly your honors the difference between this case and all of the cases s p in several of the other cases cited by the department of justice is in each of those cases the lawyers were paid in this case we have not  seventy five dollars per hour this is back then even though the client never legally incurred liability for the additional thirty five dollars per hour the court can discern no reason why this logic is not compelling that that's correct your honor but it is very persuasive in looking in what the court is pointing out is it's not whether it was legally incurred what is important is the value of the services that were render in this case  days in two different states have written numerous briefs we've been up on reconsideration up on appeal backed down in this case we provided valuable services to a man in order to preserve his livelihood when it is undisputed that