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 October 21, 2003
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(LINDSEY 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 Bruce R.
Lindsey for reimbursement of attorneys’ fees and costs pur-
suant 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 in part well taken, it is hereby
ORDERED, ADJUDGED, and DECREED that the Unit-
ed States reimburse Bruce R. Lindsey for attorneys’ fees and
2
expenses that he incurred during the investigation by Inde-
pendent Counsel in the amount of $27,992.14.
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 October 21, 2003
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(LINDSEY 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.
Per Curiam: Bruce R. Lindsey, an Arkansas attorney
closely associated with the campaigns and administrations of
William Jefferson Clinton, petitions under § 593(f) of the
Ethics in Government Act of 1978, as amended, 28 U.S.C.
§§ 591–99 (2000) (‘‘the Act’’), for reimbursement of attorney
fees in the amount of $245,023.66. He alleges he incurred
these fees as a result of an investigation conducted by the
Independent Counsel into cash transactions involving Lindsey
as the Treasurer of the 1990 Clinton for Governor campaign.
We have submitted the application to the Department of
Justice (‘‘DOJ’’) and the Independent Counsel (‘‘IC’’) for
2
comment pursuant to § 593(f)(2) of the Act, and thank them
for their comments. Although we find that most of the fees
sought by Lindsey plainly do not qualify under the Act, we
award partial reimbursement for the reasons more fully set
forth below.
I. Discussion
A. Factual Background
While much of the factual background concerning the Inde-
pendent Counsel investigation of former President Clinton
and his associates is well known and well publicized, see, e.g.,
In re Madison Guar. Savs. and Loan (Clinton Fee Applica-
tion), 334 F.3d 1119, 1119–22 (D.C. Cir., Spec. Div., 2003) (per
curiam), we must set forth in some detail the factual back-
ground of the present controversy to make it at all under-
standable. In January 1994, when the Ethics in Government
Act had lapsed by its terms and had not yet been re-enacted,
then-Attorney General Janet Reno appointed Robert Fiske as
a regulatory counsel to take over a criminal investigation
previously being conducted by the United States Attorney for
the Eastern District of Arkansas and the Criminal Division of
the Department of Justice into various allegations against
then-President Clinton and various associates of his. The
investigation developed information concerning a possible un-
lawful failure to file required currency transaction reports
(‘‘CTRs’’) for two cash withdrawals from the Perry County
Bank (‘‘PCB’’). The first withdrawal occurred on May 25,
1990, shortly before the Democratic primary election in which
Clinton was seeking renomination as governor of Arkansas,
and was in the amount of $30,000. The second occurred on
November 2, 1990, shortly before the general election for the
same office, and was in the amount of $22,500. In April 1994,
regulatory counsel Fiske subpoenaed records from PCB and
investigated the suspect transactions further. These efforts
uncovered evidence establishing that CTRs covering the two
transactions had not been filed on IRS forms 4789, as re-
quired by law for currency transactions in excess of $10,000.
Because these withdrawals appeared to be clear violations of
law, Fiske continued the investigation. The $30,000 transac-
3
tion was conducted through the use of four checks in the
amount of $7,500 each signed by petitioner Bruce R. Lindsey
and Gloria Cabe, the authorized signators on the Clinton for
Governor campaign account. The $22,500 transaction was
evidenced by a receipt in that amount signed by a campaign
volunteer for the Clinton campaign, Glenda Cooper. Inter-
views with Cooper produced evidence that Cabe had asked
her to run that errand, and that Lindsey, after the transac-
tion had occurred, expressed his displeasure with the han-
dling of the transaction and told her that if she had any
trouble with the IRS she should let him know because he was
taking care of the paperwork.
After the re-enacted Ethics in Government Act became
effective June 30, 1994, on August 4, 1994, this court appoint-
ed Kenneth Starr as statutory Independent Counsel to inves-
tigate various allegations of illegal activity concerning then-
President Clinton and his associates. Thereafter, Starr’s
investigative jurisdiction was expanded to include the allega-
tions concerning the Perry County Bank. On February 28,
1995, a federal grand jury indicted Neil T. Ainley, President
of the Perry County Bank, on charges relating to the failure
to file the CTRs covering the two transactions and of conspir-
ing to commit those violations. Ainley pleaded guilty to two
misdemeanor violations of 26 U.S.C. § 7207 and cooperated
with the Independent Counsel’s investigation.
As part of Ainley’s cooperation with the Independent Coun-
sel investigation, and in addition to information he had al-
ready provided to Fiske concerning the CTR violations, in
May of 1995 he told the Office of Independent Counsel of a
scheme involving attorney Herby Branscum Jr., and certified
public accountant Robert M. Hill, directors of PCB and
controlling shareholders of PCB’s parent corporation, to use
PCB funds to make contributions to the 1990 Clinton for
Governor campaign. On February 20, 1996, the grand jury
indicted Branscum and Hill for multiple counts of conspiracy,
misapplication of bank funds, falsifying bank records, and
false statements. On August 1, 1996, a trial jury acquitted
Branscum and Hill of four counts in the indictments and
deadlocked on the remaining seven counts. A mistrial was
4
declared as to the deadlocked counts. The cases were never
re-tried. Lindsey was never indicted or otherwise charged
with any crimes.
B. Lindsey’s Petition
As a result of the investigations into the PCB transactions,
Lindsey retained counsel and incurred substantial attorney
fees. He now petitions the court for award of $245,023.66 in
attorney fees and expenses under 28 U.S.C. § 593(f). His
account of the underlying and surrounding facts is consistent
with what we have set forth above, but we will hereafter
make reference to specific factual items relied upon by him in
his petition.
Lindsey admits, and indeed has testified during the course
of the investigation, that he, along with others in the Clinton
campaign, wished to withdraw $30,000 in cash from the PCB
account to fund a ‘‘Get Out the Vote’’ effort. He has further
testified, and reiterates in his petition, that he believed that
the use of a single check for $30,000 would attract the
attention of bank employees in the check processing depart-
ment in such a fashion as to possibly draw public attention to
the withdrawal of the cash. Therefore, for ‘‘political’’ reasons,
he used the four separate smaller checks ($7,500 each) to
circumvent the requirement that the bank report cash trans-
actions in excess of $10,000. He also admits that the Curren-
cy and Foreign Transactions Reporting Act, Pub. L. No.
91–508, 84 Stat. 1122 (1970) (‘‘CFTRA’’), requires a financial
institution to file a currency transaction report with the IRS
for any deposit, withdrawal, or other transaction greater than
$10,000, see 31 U.S.C. § 5313 (2000); 31 C.F.R. 103.22 (2003).
He further acknowledges that the CFTRA prohibits individu-
als from making ‘‘structured transactions’’ whereby a transac-
tion that would otherwise be subject to the CTR reporting
requirements is subdivided into separate transactions of less
than $10,000 each to avoid triggering the statutory reporting
requirement. He calls the court’s attention to his testimony
before the investigative grand jury in this matter explaining
the political concerns that ‘‘animated his decision to use four
separate checks’’ to withdraw the funds for the May 1990
5
‘‘Get Out the Vote’’ effort. He further points out that shortly
after the primary election, he filed an Arkansas Campaign
Finance Report disclosing that the campaign had made the
withdrawal of $30,000 for the ‘‘Get Out the Vote’’ expendi-
tures.
Against this background we assess Lindsey’s entitlement to
the award of attorney fees under the Ethics in Government
Act.
II. Analysis
Unlike persons investigated by Executive Branch prosecu-
tive and law enforcement officers, the subjects of investiga-
tions under the Ethics in Government Act are entitled to
reimbursement of attorney fees expended in defense against
such investigation under limited circumstances delineated in
28 U.S.C. § 593(f)(1), which states:
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
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.
In applying this statute, we have held repeatedly that as ‘‘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 will award counsel fees only to a
petitioner who is unindicted and who demonstrates that:
(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 Mullins (Mullins Fee Application), 84 F.3d 459, 463
(D.C. Cir., Spec. Div., 1996) (per curiam) (quoting In re North
(Cave Fee Application), 57 F.3d 1117, 1119 (D.C. Cir., Spec.
6
Div., 1995) (per curiam)). As to each of the necessary
elements, petitioner bears the burden of proof. See, e.g., In
re North (Reagan Fee Application), 94 F.3d 685, 690 (D.C.
Cir., Spec. Div., 1996) (per curiam). Applying that analysis to
Lindsey’s petition, we determine that he has carried his
burden with respect to a portion of the fees prayed, but by no
means all.
As to the ‘‘subject’’ element, there can be no legitimate
question that Lindsey was a subject of the investigation.
Although the Act does not define ‘‘subject,’’ as we have stated
before, ‘‘under any definition of ‘subject’ ’’ this element will be
‘‘squarely’’ met for fees incurred after the Independent Coun-
sel’s office informs an individual that he is a ‘‘subject.’’ In re
North (Shultz Fee Application), 8 F.3d 847, 850 (D.C. Cir.,
Spec. Div., 1993) (per curiam). It is undisputed that the
Independent Counsel’s office informed Lindsey that he was
first a subject and later a target of its investigation.
As to the ‘‘during’’ element, a portion of Lindsey’s fees do
not survive this part of the analysis. The Ethics in Govern-
ment Act applies only to investigations conducted by Indepen-
dent Counsels appointed under that Act. The statutory
Independent Counsel investigating the PCB transactions was
not appointed until August 5, 1994. Lindsey prays fees in the
amount of $1,357.50 for professional services performed in
July 1994. On the face of the petition, these fees fall outside
the waiver of sovereign immunity created in § 593(f)(1) and
must be disallowed. The balance of the fees sought in the
petition, $243,666.16, meets the ‘‘during’’ test.
This brings us to the ‘‘but for’’ element of the analysis. As
we have often 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 requirements of [the Act].’ ’’
In re Madison Guar. Savs. and Loan (Clinton Fee Applica-
tion), 334 F.3d at 1123 (citing cases) (internal quotation
marks omitted). While this difficulty is because in part of the
burden upon the petitioner ‘‘to prove a negative and one with
a high component of speculation,’’ id., it is also ‘‘difficult
because the law contemplates that it should be difficult; that
7
the fees will not be a common thing.’’ Id.; see also, e.g., In re
Olson, 884 F.2d 1415, 1420 (D.C. Cir., Spec. Div., 1989) (‘‘The
court is admonished to award reimbursement for attorneys’
fees ‘in only rare instances’ for ‘extraordinary expenses,’
‘sparingly.’ ’’) (quoting S. Rep. 97–496, 92nd Cong., 2d Sess.
19 (1982)). Otherwise put, ‘‘the contemplation of the legisla-
tion is not that subjects of independent counsel investigations
will be reimbursed for all legal fees, but only that they will be
reimbursed for those legal fees that would not have been
incurred by a similarly-situated subject investigated in the
absence of the Act.’’ In re Pierce, 213 F.3d 713, 717 (D.C.
Cir., Spec. Div., 2000) (per curiam).
Perhaps in recognition of the difficulty of his task, Lindsey
offers a sweeping multifaceted argument supporting that he
would not have incurred the fees he seeks ‘‘but for’’ the
requirements of the Ethics in Government Act. So sweeping
is his claim that he first asserts that the investigation of his
apparent violations of the CFTRA would not have occurred at
all but for the Act. This assertion is patently untenable.
The investigation not only would have commenced in the
absence of the Act, it did. The investigation began before
Congress reauthorized the Act.
However, this does not end our analysis. We are left with
the question ‘‘whether the requirements of the Act caused an
increase in the length or intensity of the investigation.’’ In re
Madison Guar. Savs. and Loan (Jordan Fee Application),
F.3d , 2003 WL 22231590, at *4 (D.C. Cir., Spec. Div.,
2003) (per curiam) (citing In re North (Dutton Fee Applica-
tion), 11 F.3d 1075 (D.C. Cir., Spec. Div., 1996) (per curiam),
and In re Donovan (Donovan Fee Application), 877 F.2d 982,
990 (D.C. Cir., Spec. Div., 1989) (per curiam)). To put it
differently, it is our task to determine whether Lindsey has
established that all or part of the investigation conducted
after the appointment of the statutory Independent Counsel
would not have occurred in the absence of the Act. It is
obvious that some of the further investigation would have
occurred. The Independent Counsel inherited an ongoing
investigation. It would have been impossible for him to have
stopped that investigation without at least reviewing it imme-
8
diately upon replacing regulatory counsel Fiske. To deter-
mine whether some of his investigation would not have oc-
curred but for the requirements of the Act, we will apply the
four helpful tests we have employed in numerous fee applica-
tion evaluations:
1. [Whether] the independent counsel’s investigation
substantially constituted duplication of the preliminary
investigation conducted by the Department of Justice.
In re Olson, 884 F.2d 1415, 1420 (D.C. Cir., Spec. Div.,
1989) (per curiam); In re North (Dutton Fee Applica-
tion), 11 F.3d at 1080.
2. [Whether] the petitioning subject has been ‘‘preju-
diced by the Department of Justice’s failure to comply
with the substantial protective features of the Act.’’ In
re Nofziger, 925 F.2d at 438 (citing In re Meese, 907 F.2d
1192 (D.C. Cir., Spec. Div., 1990) (per curiam)).
3. [Whether] 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 peti-
tioning subject 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, [whether]
‘‘high public officials [or derivative subjects] were investi-
gated under the Act in circumstances where private
citizens would not [have been] investigated.’’ In re Nof-
ziger, 925 F.2d at 442; In re North (Dutton Fee Applica-
tion), 11 F.3d at 1080.[1]
In re Pierce (Abrams Fee Application), 190 F.3d 586, 592
(D.C. Cir., Spec. Div., 1999) (citations omitted).
1 We have often referred to these four categories as not necessar-
ily exhaustive of the universe of possible ‘‘circumstances sufficient
to qualify for [an] attorney fee award in the face of the ‘but for’
requirement.’’ In re Madison Guar. Savs. and Loan (Jordan Fee
Application), F.3d , 2003 WL 22231590, at *3. However,
here, as in earlier cases, e.g., id., petitioner has advanced no novel
circumstance warranting an award that falls outside the four estab-
lished categories.
9
Before making a general application of those four catego-
ries, we note that a discrete part of the remaining $243,666.16
can be analyzed on a more specific basis. Lindsey claims
$1840.00 for time spent on July 17 and 18 for 2.25 hours of
legal services concerning review of the Independent Counsel’s
report, required by 28 U.S.C. § 594(h)(1)(B), and 1.25 hours
for editing notes relating to the fee application. The time
spent on the report is reimbursable; the time spent on the
fee application is not. We have repeatedly held that the
unique reporting requirement of the Act automatically quali-
fies fees generated by the report for reimbursement. See,
e.g., In re Madison Guar. Savs. and Loan (Clinton Fee
Application), 334 F.3d at 1128. We have likewise held that
the statute does not award ‘‘fees for fees’’ so that the 1.25
hours is automatically disallowed. See In re Mullins (Mul-
lins Fee Application), 84 F.3d 459, 466 (D.C. Cir., Spec. Div.,
1996) (per curiam); In re North (Gadd Fee Application), 12
F.3d 252, 257 (D.C. Cir., Spec. Div., 1994) (per curiam).
Thus, we easily ascertain that $575 of the prayed fees will be
disallowed; $1,035 will be awarded. We will then subject the
remaining $243,091.16 to analysis under the four listed cate-
gories.
The gravamen of Lindsey’s argument is that this investiga-
tion falls within category 4. That is, he claims that the
apparently unlawful structuring of the withdrawals to avoid
the reporting requirements of the CFTRA would not have
been subjected to this intense investigation had the transac-
tions involved private citizens not subject to investigation by
an independent counsel appointed under the Ethics in Gov-
ernment Act. While we have already noted that this argu-
ment cannot support an award of the full fees incurred, as the
investigation not only would have been but also was com-
menced in the absence of the Act, this does not dispose of the
possibility that the intensity and length of the investigation
was enhanced by the requirements of the Act. In support of
his proposition that this is the case, Lindsey advances a
rather complex argument. First, he asserts that the with-
drawals which occurred here do not fall within the purpose of
the CFTRA. He advances legislative history for the no doubt
10
accurate proposition that in enacting 31 U.S.C. § 5324, ‘‘Con-
gress was not concerned with individuals conducting garden-
variety banking transactions but was instead principally tar-
geting entities engaged in money laundering and tax evasion.’’
Petition of Lindsey at 22, citing S. Rep. No. 99–433 (1986); H.
Rep. No. 99–746 (1986). As he notes, the House Judiciary
Committee observed: ‘‘Money laundering is the lifeblood of
the drug traffickers and traditional organized crime.’’ H.
Rep. No. 99–746, at 16. While we are not certain that the
deliberate structuring of a transaction in such a fashion as to
avoid the reporting requirements of federal law can ever be
properly styled ‘‘garden variety,’’ Lindsey’s proposition may
be otherwise true. Nonetheless, it is not dispositive.
The reach of a statute may be, and often is, far greater
than the specific motivation of its authors. Indeed, he admits
as much when he incorporates the adjective ‘‘principally’’ in
describing the targeting of the CFTRA toward money laun-
dering and tax evasion. To establish further the truth of the
proposition that a statute’s reach often exceeds its motivation,
we need but look to the sweeping effect of the Racketeer–
Influenced Corrupt Organizations Act (RICO), 18 U.S.C.
§§ 1961–68. It is fair to say that ‘‘[i]n enacting RICO,
Congress was trying to get the Mafia out of legitimate
business.’’ D. Sentelle, Civil RICO: The Judges’ Perspective,
12 Campbell L. Rev. 145, 149 (1990) (citing G. Lynch, RICO:
The Crime of Being a Criminal, 87 Colum. L. Rev. 920
(1987)). But as the Supreme Court observed in 1985, ‘‘private
civil actions under the statute are being brought almost solely
against [legitimate] defendants rather than against the arche-
typical intimidating mobster.’’ Sedima v. Imrex, 473 U.S.
479, 499 (1985). The Supreme Court has made it explicit that
the breadth of the application of the language enacted by
Congress beyond the remedying of the evil which motivated it
‘‘is hardly a sufficient reason for assuming that the provision
is being misconstrued.’’ Id. Just so here. Money launder-
ing may have been the motivation for the enactment, but that
does not define the scope of its application.
The evidence presented to the statutory independent coun-
sel upon inheriting the investigation from the regulatory
11
counsel on its face revealed conduct falling squarely within
the elements of the conduct outlawed by Congress, even if its
context was not what Congress had in mind. Again, however,
this does not foreclose all possibility of some validity in
Lindsey’s argument. There is a large universe of cases in
which the subject of the investigation may have engaged in
conduct that literally violated all the elements of a criminal
statute but in which, for reasons of policy, ‘‘ ‘the Department
of Justice would in all likelihood exercise its discretion to
decline to prosecute TTT as a criminal matter.’ ’’ In re Segal,
145 F.3d 148, 152 (D.C. Cir., Spec. Div., 1998) (per curiam)
(quoting Application for Appointment of Independent Coun-
sel). Lindsey’s arguments require us to examine the facts
before us further to determine if this is one such case.
Lindsey asserts that in an exhaustive review of 178 opin-
ions (the apparent full universe of published opinions arising
from criminal prosecutions for structured currency transac-
tions), counsel for Lindsey ‘‘found not a single case where, as
here: (1) the source of the funds was legally derived and
there was no intent to evade taxes; (2) the defendant was
accused of structured withdrawals, not deposits; and (3) the
substance of the transactions in question was actually dis-
closed in an alternative public report.’’ (Emphasis petition-
er’s.) While this is interesting, it is not particularly surpris-
ing. Presumably, many prosecuted cases analyzed on a
sufficient level of specificity appear unique. That is, each
case arises from its own history, and the fact that no previous
prosecution has precisely coincided with each fact in a case
under examination hardly renders the unique case unworthy
of prosecution. To hold otherwise would be to reward inge-
nuity in the methodology of criminal violation. This does not
bring Lindsey’s application within the ambit of the precedent
we established in such cases as In re North (Dutton Fee
Application), 11 F.3d 1075 (D.C. Cir., Spec. Div., 1993) (per
curiam), wherein we held that the conduct investigated by the
Independent Counsel would not have been ‘‘treated TTT as
having criminal consequences’’ at all, id. at 1080 (explaining
that criminal investigation of circumvention of the ‘‘Boland
Amendment’’ would not have occurred in the absence of the
12
requirements of the Act). See also In re North, 72 F.3d 891,
895 (D.C. Cir., Spec. Div., 1995) (per curiam). Still, while of
little independent force, insofar as the lack of a square
precedent weighs at all, it weighs in favor of the proposition
that a professional or politically appointed prosecutor would
not have brought a prosecution on the facts of Lindsey’s case.
In further support of the proposition that his petition is
governed by the logic of In re Segal, Lindsey points out that
of the 178 reported cases, 151 contain direct evidence that the
currency in question was derived from illicit sources or was
being concealed to evade federal taxation, and that in at least
12 of the remaining 27 decisions, circumstantial evidence
suggested the presence of other illicit activities. Finally, 8 of
the remaining 15 cases involved prosecutions of ‘‘insiders’’
within the institution, comparable to Branscum, Hill, and
Ainley, who had duties under the reporting provisions of the
CFTRA, unlike Lindsey, whose only exposure came from the
structured transaction. Again, this cannot bring the case
within the precedent of Dutton, as it only demonstrates that
few, as opposed to none, of the investigations and prosecu-
tions by professional or politically appointed prosecutors had
involved defendants or conduct similar to Lindsey and his
transactions. Further, the apparent statistical analysis has
the inherent and perhaps unavoidable flaw that we do not
know from what universe of potential prosecutions the actual
prosecutions arose. That is, it may be that the greater
number of prosecutions of insiders dealing with deposits as
opposed to outsiders making withdrawals results from there
being more such violations in the first instance. We simply
cannot know.2 Again, this argument weighs little. Again
however, insofar as it weighs anything, it weighs in Lindsey’s
favor.
Finally, and with some convincing force, Lindsey asserts
that none of the reported cases involve prosecution of an
individual accused of making a structured transaction which
2 Also, most federal criminal cases end in pleas and never become
reported cases. Lindsey’s analysis provides neither information nor
allowance on those cases.
13
he actually reported in some other public document shortly
after the commission of the acts constituting the apparent
offense. Lindsey did in fact disclose the $30,000 withdrawal
as a single transaction on an Arkansas campaign finance
report shortly after the primary. This fact certainly goes to
the apparent presence or lack of criminal intent on the part of
the actor and may well have caused a United States Attorney
who, unlike the Independent Counsel, would have been con-
fronted with choices for prosecution of a great many cases
and would have been much more limited in the availability of
investigative and prosecutorial resources to devote to the case
to make a determination to decline prosecution. The wisdom
of such a choice may be reflected in the fact that the two
insiders who went to trial were never convicted. Again, this
factor weighs in Lindsey’s favor and somewhat more heavily
than the others.
The remaining difficulty to Lindsey is that accepting all of
his propositions as true, they still do not erase the fact that
the Independent Counsel could have known of none of them
without conducting an investigation. That is, Lindsey has
succeeded in convincing us that a politically appointed or
professional prosecutor having conducted an investigation and
found out all that Lindsey has told us would then not have
proceeded to indicting Lindsey. Since that is precisely what
occurred under the application of the Ethics in Government
Act, taking all of Lindsey’s points in his favor, we still must
conclude that the investigation would have occurred even in
the absence of the Act, and he would still have incurred legal
fees. Thus, it is impossible for us to conclude that all of his
counsel fees survive the ‘‘but for’’ test.
Lindsey’s remaining hope is that those factors convince us
that the investigation would not have been as extensive or as
lengthy before the decision to decline prosecution was made,
and that therefore, some portion of his fees would not have
been incurred but for the requirements of the Act. We agree
that this is likely. While this is not a case like Segal, where
the professional or politically appointed prosecutor would
have declined on the face of the first facts uncovered, none-
theless, the factors set forth by Lindsey convince us that the
14
decision not to prosecute was a likely one and one that would
likely have been made at an earlier stage but for the Act.
That is, the Independent Counsel, unlike other prosecutors,
was required by the provisions of 28 U.S.C. § 594(h)(1)(D) to
file a final report ‘‘setting forth fully and completely a de-
scription of the work of the Independent Counsel, including
the disposition of all cases brought.’’ While the applicable
version of the reporting requirement no longer contains the
mandate of an earlier version, which had required that the
report include ‘‘the reasons for not prosecuting any matter
within the prosecutorial jurisdiction of such independent
counsel,’’ the import of the report is still in the direction of
enhanced thoroughness in exercising such prosecutorial dis-
cretion. Likewise, as we implied above, the Independent
Counsel’s single case jurisdiction and expanded resources, as
opposed to those of a United States Attorney, would likely
further impel an enhanced thoroughness of investigation be-
fore the exercise of a determination not to prosecute an
apparent violation of federal law falling within the Indepen-
dent Counsel’s jurisdiction. We therefore are convinced that
some portion of Lindsey’s counsel fees would not have been
incurred ‘‘but for’’ the requirements of the Act.
The remaining difficulty is that Lindsey, in an understanda-
ble zeal to obtain reimbursement for all of his counsel fees,
has given us little help in determining what part actually
comes within the allowable realm. Likewise, the IC and the
DOJ, in their evaluations of Lindsey’s petition, have under-
standably focused on disposing of his claims to full reimburse-
ment. Each of them, substantially for the reasons set forth
above, concludes that the claims for full reimbursement are
meritless. This does not, however, provide us much assis-
tance in ascertaining at what point the fees become reimburs-
able once we have rejected the all-or-nothing approach.
Therefore, we have independently examined the record in the
case to fix the point in time at which Lindsey no longer would
have been considered a subject had the Act not been in effect.
Arguably, we should reject the full petition, as the petitioner
bears the burden of establishing his entitlement. See, e.g., In
re North (Reagan Fee Application), 94 F.3d at 690. Howev-
15
er, we are convinced that taking all Lindsey’s arguments
together and examining the record in light of those argu-
ments, we can determine a point at which we can reasonably
conclude Lindsey’s status as subject would have terminated
but for the Act. Taking all those factors into account, we
believe that in the absence of the Act, Lindsey’s status as a
subject would have terminated at or around the time of the
indictment of the last two insiders from the bank, that is,
around February 20, 1996.
After that critical date in February, during the balance of
that month, Lindsey incurred fees in the amount of $1,345.
He claims expenses for February in the amount of $181.19.
While we are unable to ascertain precisely the date he
incurred those expenses, on a pro rata basis we find it
reasonable to hold that $45.30 of the expenses billed for
February survive the ‘‘but for’’ analysis. Adding the counsel
fees for this part of February and for the months of March,
April, May, June, July, August, and September produces a
total of $26,097.50 in counsel fees which survive the ‘‘but for’’
test. Expenses for the same period, inclusive of the pro rata
share for February, total $1,894.64.
Before settling on the above amounts as reimbursable, we
must also subject the billing to the reasonableness analysis
mandated by the statute. Assisted by the comments by the
Department of Justice and the Independent Counsel, we have
first subjected the fees to an analysis as to the reasonable-
ness of the hourly rates of the attorneys performing services
for Mr. Lindsey, which were generally in the range of $295–
350 per hour. Given the importance of the matter to a
petitioner of Mr. Lindsey’s status, and the level of profession-
al expertise and reputation of the attorneys whom he em-
ployed, we find the rates, while perhaps high in some abstract
sense, fall within the bounds of reasonableness established in
our prior decisions. Cf. In re North (Bush Fee Application),
59 F.3d 184, 189 (D.C. Cir., Spec. Div., 1995) (per curiam).
The Independent Counsel also calls our attention to the fact
that the billing often represents two attorneys jointly per-
forming task and suggests that we might question the reason-
ableness of those fees under our precedent in In re North
16
(Bush Fee Application), id. at 190 (‘‘though it may be reason-
able for a solvent client charged with a serious offense to pay
the additional costs of having a highly staffed case, this does
not mean that petitioner has established the reasonableness
of billing that sort of duplication (or in this case triplication or
more) to the public fisc.’’) (citation omitted). We have exam-
ined the staffing level of the present billing in detail and
conclude that the petition seeks fees only for reasonable
levels of staffing. There are times that call for two attorneys.
All the times in which two attorneys were employed in this
case seemed to fall within that category. Therefore, we find
all of the fees that survive the ‘‘but for’’ analysis also survive
the reasonableness test. As to the expenses, while we are not
able to determine with the precision we would prefer the
necessity of each of the expenses claimed, we hold that they
do not fall outside the bounds of reasonableness. We there-
fore will allow all those expenses totalled above.
III. Clarification
Knowing that our decision herein may be cited as prece-
dent in future cases involving petitions for attorney fees
under the Act, we wish to clarify what we are not holding. It
is not our holding that the reporting requirement and the
single-case focus of the Independent Counsel are sufficient to
warrant the award of attorney fees in the face of the ‘‘but for’’
test. As we noted in Clinton Fee Application, because the
same statutory requirements ‘‘occur in every Independent
Counsel investigation,’’ and because Congress has made it
plain that the award of fees should not so occur, these
provisions ‘‘cannot be bases for satisfying the ‘but for’ re-
quirement.’’ Clinton Fee Application, 334 F.3d at 1124–25.
We hold only that in a case such as this wherein the prosecu-
tor must make a decision to decline prosecution on facts that
would on their face support a finding of criminal conduct, we
will consider those factors in determining whether the prose-
cutor would have made that decision at an earlier point in the
investigation or after a less intense investigation in the ab-
sence of the requirements of the Act. We intend to create no
more precedent on that subject than that which we have just
stated.
17
Conclusion
For the reasons set forth above and by judgment of even
date herewith, we award to petitioner Bruce Lindsey reim-
bursement for counsel fees in the total amount of $26,097.50,
and expenses in the amount of $1,894.64, for a total judgment
of $27,992.14.