Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed September 30, 2003
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(JORDAN FEE APPLICATION)
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
–————
Before: SENTELLE, Presiding, FAY and REAVLEY, Senior
Circuit Judges.
ORDER
This matter coming to be heard and being heard before the
Special Division of the Court upon the application of Vernon
A. Jordan, Jr. for reimbursement of attorneys’ fees and costs
pursuant to section 593(f) of the Ethics in Government Act of
1978, as amended, 28 U.S.C. § 591 et seq. (2000), and it
appearing to the court for the reasons set forth more fully in
the opinion filed contemporaneously herewith, that the peti-
tion is not well taken, it is hereby
ORDERED, ADJUDGED, and DECREED that the peti-
tion of Vernon A. Jordan, Jr. for attorneys’ fees that he
2
incurred during the Independent Counsel’s investigation be
denied, save for a single unique item.
PER CURIAM
For the Court:
Mark J. Langer, Clerk
By:
Marilyn R. Sargent
Chief Deputy Clerk
Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed September 30, 2003
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(JORDAN FEE APPLICATION)
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
–————
Before: SENTELLE, Presiding, FAY and REAVLEY, Senior
Circuit Judges.
ON APPLICATION FOR ATTORNEYS’ FEES
Opinion of the Special Court filed Per Curiam.
Separate opinion specially concurring in the judgment filed
by Senior Circuit Judge REAVLEY.
Per Curiam: Vernon A. Jordan, Jr., petitions this Court
under section 593(f) of the Ethics in Government Act of 1978,
as amended, 28 U.S.C. §§ 591–599 (2000) (the Act), for reim-
bursement of attorneys’ fees in the amount of $302,719.82,
inclusive of $16,111.30 in expenses allegedly incurred by him
in connection with the investigation conducted by the Inde-
pendent Counsel of Jordan’s alleged involvement in perjury
and subornation of perjury. Because we conclude that Jor-
dan has not carried his burden of showing that the fees would
2
not have been incurred but for the requirements of the Act,
we deny the petition, save for a single unique item.
I. BACKGROUND
In August 1994, upon the petition of then-Attorney General
Janet Reno, this Court appointed an Independent Counsel to
continue the investigation of the Madison Guaranty Savings
and Loan Association theretofore conducted by Reno appoin-
tee regulatory Independent Counsel Robert B. Fisk, Jr. On
January 16, 1998, again upon the application of Attorney
General Reno, this Court ordered the Independent Counsel’s
jurisdiction expanded to include an investigation as to wheth-
er Monica Lewinsky or others had suborned perjury, ob-
structed justice, intimidated witnesses or otherwise violated
federal laws in dealing with witnesses or potential witnesses
in connection with the civil law suit filed by Paula Jones
against William Jefferson Clinton. In the early stages of that
investigation, Lewinsky declined to cooperate with the Office
of Independent Counsel (OIC) although she subsequently
provided substantial evidence of the involvement of then-
President Clinton in the alleged violations of law. Because
the allegations of perjury and obstruction proceeded from
evidence that Clinton had presented false testimony under
oath concerning his relationship with Lewinsky, and because
the OIC had evidence that Clinton may have attempted to
influence Lewinsky and others to perjure themselves in sup-
port of his own perjury, the OIC conducted extensive investi-
gation into the relationship between the President and Lewin-
sky prior to obtaining her cooperation.
In the course of that investigation, the OIC obtained evi-
dence that Jordan, a prominent attorney in Washington, DC,
and friend of President Clinton, who was well connected with
many private corporations, assisted Lewinsky in her efforts to
find a job outside the Clinton administration. Jordan also
arranged for Lewinsky to be represented by another promi-
nent Washington attorney in connection with her subpoena in
the Jones case. The OIC also uncovered evidence that in
January of 1998, Lewinsky accepted a job offer from Revlon;
3
that Jordan assisted her in obtaining that job offer; and that
Jordan may have assisted Lewinsky in obtaining the job as a
result of Lewinsky’s willingness to perjure herself regarding
the true nature of her relationship with President Clinton and
in support of Clinton’s own perjured testimony. The OIC
therefore deemed it critical to determine if Jordan had of-
fered Lewinsky assistance in exchange for her perjured testi-
mony.
Ultimately, although the Independent Counsel obtained no
indictments arising out of the Jones v. Clinton obstruction of
justice and perjury investigation, the President was im-
peached, as well as held in contempt by the judge in the
Jones litigation. Further, the Independent Counsel entered
into a bargain with the President whereunder the President
admitted wrongdoing; accepted other non-criminal sanctions;
and the Independent Counsel filed a final report. That final
report expressed the conclusion ‘‘that sufficient evidence ex-
isted to prosecute [President Clinton] and that such evidence
would ‘probably be sufficient to obtain and sustain a convic-
tion TTT by an unbiased trier of fact.’ ’’ Final Report at 41
(quoting United States Attorneys Manual Title 9–27.001–
9–27.050).
In response to the investigation of his alleged connection
with the perjury and obstruction of justice, Jordan retained
legal counsel. He now petitions for the fees incurred in that
representation.
II. ANALYSIS
As we have had frequent occasion to note before, the
Ethics in Government Act, unique in the criminal law struc-
ture of the United States, provides for reimbursement of
attorneys’ fees expended by subjects in defense against an
investigation under the Act. Specifically, 28 U.S.C. § 593(1)
provides:
Upon the request of an individual who is the subject of
an investigation conducted by an independent counsel
pursuant to this chapter, the division of the court may, if
no indictment is brought against such individual pursuant
4
to that investigation, award reimbursement for those
reasonable attorneys’ fees incurred by that individual
during that investigation which would not have been
incurred but for the requirements of this chapter.
As we have in the past, we note that because this attorneys’
fee provision ‘‘constitutes a waiver of sovereign immunity it is
to be strictly construed.’’ In Re: Nofziger, 925 F.2d 428, 438
(D.C. Cir., Spec. Div., 1991) (per curiam). Therefore, we are
authorized to award attorney fees only where petitioner has
established the following elements:
(1) he is a ‘‘subject’’ of such investigation;
(2) the fees were incurred ‘‘during’’ the investigation;
(3) the fees would not have been incurred ‘‘but for’’ the
requirements of the Act; and
(4) the fees are ‘‘reasonable.’’
In Re: North (Reagan Fee Application), 94 F.3d 685, 687
(D.C. Cir., Spec. Div., 1996) (citing In Re: North (Cave Fee
Application), 57 F.3d 1117, 1119 (D.C. Cir., Spec. Div., 1995)).
Jordan easily meets the first two requirements of the Act.
Although the Act does not define ‘‘subject’’ we have held
repeatedly that a ‘‘subject is one who, at the time of incurring
the fees involved in the application knew that his conduct was
within the scope [of the investigation] in such a fashion that
the independent counsel might reasonably be expected to
point the finger of accusation at him.’’ In Re: North (Schultz
Fee Application), 8 F.3d 847, 850 (D.C. Cir., Spec. Div., 1993)
(per curiam). Jordan knew early in the investigation that the
Independent Counsel was in possession of audio tapes of
conversations between Lewinsky and another witness in
which Lewinsky attempted to suborn the perjury of the other
witness. Jordan also was aware that the independent counsel
had obtained evidence that Lewinsky had discussed her sub-
poena in Jones v. Clinton with President Clinton and Jordan
and that Jordan was helping Lewinsky find employment.
Furthermore, the Office of the Independent Counsel itself
confirmed Jordan’s status as a subject of the investigation
5
with Jordan’s counsel before Jordan appeared at the Grand
Jury convened for the Lewinsky investigation.
As to the ‘‘during’’ element, there is no contention that
Jordan seeks fees incurred outside the period of investigation.
However, like most fee applicants under the Act, petitioner
has not been able to establish that the fees ‘‘would not have
been incurred but for the requirements of [the Ethics in
Government Act].’’ See, e.g., In re: Pierce (Kisner Fee
Application), 178 F.3d 1356, 1358–62 (D.C. Cir., Spec. Div.,
1999). As we have frequently stated, ‘‘the most difficult
element for a fee applicant to establish under the Act is that
the fees ‘would not have been incurred but for the require-
ments of [the Act].’ ’’ In Re: North (Bush Fee Application),
59 F.3d 184, 188 (D.C. Cir., Spec. Div., 1995) (per curiam)
(quoting In Re: North (Dutton Fee Application), 11 F.3d
1075, 1079 (D.C. Cir., Spec. Div., 1996) (per curiam)). This is
true in part because the ‘‘but for’’ test requires a petitioner to
prove a negative and a negative is fraught with speculation.
In large part, however, the establishment of this element is
difficult because the law contemplates that it should be diffi-
cult; that is, that such fees will not be a common thing. See,
e.g., In Re: Olson, 884 F.2d 1415, 1420 (D.C. Cir., Spec. Div.,
1989) (per curiam) (‘‘The Court is admonished to award
reimbursement for attorneys’ fees ‘in only rare instances’ for
‘extraordinary expenses,’ ‘sparingly’ ’’) (quoting S. Rep. No.
97–496, 97th Cong., 2nd Sess. 19 (1982)). Thus we have held
repeatedly that ‘‘the contemplation of the legislation is not
that subjects of independent counsel investigation will be
reimbursed for all legal fees, but only TTT for those legal fees
that would not have been incurred by a similarly situated
subject investigated in the actions of the Act.’’ In re: Madi-
son Guaranty Savings & Loan (Clinton Fee Application),
334 F.3d 1119 (D.C. Cir., Spec. Div., 2003) (per curiam).
We have in the past listed four nonexhaustive circum-
stances sufficient to qualify for attorney fees award in the
face of the ‘‘but for’’ requirement:
1. When the independent counsel’s investigation sub-
stantially constituted duplication of the preliminary in-
6
vestigation conducted by the Department of Justice. In
re Olson, 884 F.3d 1415, 1420 (D.C. Cir., Spec. Div., 1989)
(per curiam); In re North (Dutton Fee Application), 11
F.3d at 1080.
2. When the petitioning subject has been ‘‘prejudiced
by the Department of Justice’s failure to comply with the
substantial protective features of the Act.’’ In re Nofzig-
er, 925 F.3d at 438 (citing In re Meese, 907 F.3d 1192
(D.C. Cir., Spec. Div., 1990) (per curiam)).
3. When in the absence of the requirements of the Act
‘‘the case could have been disposed of at an early stage of
the investigation,’’ without subjecting the petitioning sub-
ject to the conditions that led to his incurring the fees
sought. In re Segal (Sagawa Fee Application), 151 F.3d
1085, 1089 (D.C. Cir., Spec. Div., 1998) (per curiam)
(quoting In re Nofziger, 925 F.2d at 438).
4. Not wholly distinct from no. 3, supra, when ‘‘high
public officials [or derivative subjects] were investigated
under the Act in circumstances where private citizens
would not [have been] investigated.’’ In re Nofziger, 935
F.2d at 442; In re North (Dutton Fee Application), 11
F.3d at 1080.
In re Pierce, 190 F.3d 586, 592 (D.C. Cir., Spec. Div., 1999)
(per curiam) (citations omitted).
Jordan’s application does not satisfy any of the four exist-
ing categories nor suggests any new or unique reason why his
case constitutes one of those rare instances in which we
should award counsel fees. Jordan contends that his case
falls within the related exceptions numbered 3 and 4 above
arguing that ‘‘the investigation into the allegations concerning
Mr. Jordan would have been quickly disposed of but for the
requirements of the Act and had Mr. Jordan not been a
prominent Washington attorney and a personal friend of
President Clinton.’’ Jordan then cites and relies on Dutton,
supra, and In re Donovan (Donovan Fee Application), 877
F.2d 982, 990 (D.C. Cir., Spec. Div., 1989) (per curiam).
However, what Jordan neglects is that in both Donovan and
Dutton we were dealing with the question of the status of the
7
subject and the intensity and length of the investigation in
terms of whether or not that status influenced an independent
counsel to conduct an investigation that would not have been
conducted but for the Act and whether the requirements of
the Act caused an increase in the length or intensity of the
investigation. Jordan’s argument not only does not fit within
those precedents, it distinguishes those on its face.
Jordan cites his no doubt accurate claim to be a prominent
Washington attorney and a friend of the President as the
reason for the intensity of the investigation, but other than a
conclusory statement, he offers no fashion in which the Act
was a ‘‘but for’’ cause of all or part of the investigation
generating the attorney fees for which he now seeks reim-
bursement. In the Donovan case, the Deputy Attorney
General, by his own testimony, had ‘‘found himself unable to
comply ‘with the written or other established policies of the
Department of Justice with respect to [regular] enforcement
of criminal laws’ against citizens who were not high level
government officials.’’ 877 F.2d at 990. With one finite
exception which will be discussed infra, nothing in Jordan’s
application or the supporting documentation supports the
proposition that the investigation of Jordan was any longer or
more intense than it would have been in the absence of the
requirements of the Act.
The Attorney General when she made the referral, and the
Independent Counsel when he conducted the investigation,
had credible, indeed compelling, evidence that Monica Lewin-
sky had committed perjury and was attempting to suborn
perjury of others. This was accompanied by other evidence
that the President of the United States had committed perju-
ry and had suborned or attempted to suborn others. Evi-
dence developed from this evidence established that Jordan, a
friend of the President, had undertaken extensive efforts to
benefit Lewinsky, the apparent perjurer and suborner of
others. Jordan offers no reason why any prosecutor in the
absence of the Act would not have investigated these serious
allegations of criminal wrongdoing as thoroughly as did the
Independent Counsel. Rather than fall within the precedent
of Donovan, Jordan’s claim parallels those rejected in such
8
prior decisions as In re Pierce (Olivas Fee Application), 178
F.3d 1350 (D.C. Cir., Spec. Div., 1999) (per curiam). In
Olivas, and numerous similar cases, we rejected claims paral-
leling those of Jordan stating that ‘‘we cannot hold that the
Attorney General and other investigative authorities would
not have pursued allegations of corruption as deep and wide
spread as those revealed by the Independent Counsel’s inves-
tigation had there been no such Act.’’ Id. at 1355. Similarly
here, we cannot hold that the Attorney General, U.S. Attor-
neys, and other investigative authorities would not have pur-
sued the credible allegations of perjury and subornation in
absence of the Act. Nor can we say that a professional or
politically appointed prosecutor would not have investigated
the implications of an extensive effort by a friend of President
Clinton’s to secure employment for the person who had
perjured herself on his behalf and sought to suborn others to
do so. The Dutton precedent is even further removed. In
that case, the conduct under investigation by the Independent
Counsel was so marginally criminal that we held, as we did in
several parallel cases, that ‘‘but for’’ the requirements of the
Act, no criminal investigation would have been conducted at
all. See also In re Segal (Segal Fee Application), 145 F.3d
1348, 1350 (D.C. Cir., Spec. Div., 1998).
We note that Jordan petitions for $1,215.00 or 2.7 hours for
review of the Independent Counsel’s final report. As we have
noted in many other cases, § 594 of the Act imposes the
requirement that the Independent Counsel ‘‘file a final report
with the Division of the Court, setting forth fully and com-
pletely the description of the work of the Independent Coun-
selTTTT’’ 28 U.S.C. § 594(h)(1)(B). Outside the require-
ments of the Act, federal ‘‘prosecutors do not issue reports.’’
In re North, 16 F.3d 1234, 1238 (D.C. Cir., Spec. Div., 1994).
‘‘Indeed TTT the filing of reports by Independent Counsels is
a complete departure from the authority of a United States
Attorney and is contrary to the practice in federal Grand
Jury investigations.’’ In re Madison Guaranty Savings &
Loan (Clinton Fee Application), 334 F.3d 1119, 1127 (D.C.
Cir., Spec. Div., 2003) (per curiam) (internal quotation marks
and citations omitted). Therefore, we do hold that this is a
9
fee which would not have been incurred but for the require-
ment of the Act. Because it appears reasonable, we will
award recovery in the amount of $1,215.00.
CONCLUSION
For the reasons set forth above, we allow the petition for
fees of Vernon A. Jordan, Jr., only to the extent of $1,215.00.
Except as herein specifically allowed, the petition is denied.
1
REAVLEY, Senior Circuit Judge, specially concurring:
Because of Ms. Lewinsky’s statements and conduct, an
investigation of Mr. Jordan was warranted. The extensive-
ness of that investigation (five grand jury appearances, for
example) may well have necessitated more legal expense than
would have been required had there been no Independent
Counsel conducting the investigation. The problem, as the
court explains, is that Mr. Jordan is required to distinguish
his costs due solely to the extensiveness of the Independent
Counsel’s investigation. This is his burden and he makes no
attempt to carry it — most likely an impossibility. There
being no reasonable basis for ruling other than the court
does, I concur.