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 December 3, 2004
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(LASATER 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 Dan R.
Lasater for reimbursement of attorneys’ fees and costs pursu-
ant 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 petition is not well
taken, it is hereby
2
ORDERED, ADJUDGED, and DECREED that the peti-
tion of Dan R. Lasater for attorneys’ fees that he incurred
during the Independent Counsel’s investigation be denied.
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 December 3, 2004
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(LASATER 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 for the Special Court filed PER CURIAM.
PER CURIAM: Dan R. Lasater 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 $863,095.11
that he claims were incurred during and as a result of the
investigation conducted by Independent Counsel. Because
we conclude that Lasater has not carried his burden of
establishing any of the elements of his entitlement, we deny
the petition in its entirety.
2
Background
In 1978 Congress enacted the Independent Counsel Act,
which instructed the Attorney General to request an outside
prosecutor in cases alleging criminal conduct by high federal
government officials. Since the Act included a sunset provi-
sion, it had to be reenacted periodically in order to stay in
effect. This Congress regularly did until the early 1990’s
when it let the Act lapse for 18 months.
During the lapse, specifically in early 1994, the Attorney
General appointed Robert B. Fiske as a regulatory indepen-
dent counsel to investigate allegations of questionable busi-
ness transactions by then-President William Jefferson Clinton
while he was Governor of Arkansas in the 1980’s. One among
these was the allegation that Dan R. Lasater, the fee petition-
er here, improperly received state bond business as a result
of his relationship with President Clinton and his brother
Roger Clinton. In April and June, 1994, Fiske issued eight
subpoenas to Lasater and his various companies, calling for
the production of documents.
At about this same time, in June of 1994, Congress reau-
thorized the independent counsel statute. On August 5, 1994,
we appointed Kenneth W. Starr as statutory independent
counsel to take over Fiske’s investigation. All of the docu-
ments called for in the subpoenas issued to Lasater, however,
were produced to Fiske prior to Starr’s appointment. No
criminal charges were brought against Lasater concerning
the matter.
Pursuant to § 593(f)(1) of the Act, Lasater now petitions
the court for reimbursement of the fees he incurred in
responding to the subpoenas, in the amount of $863,095.11,
consisting of $250,000 in attorneys’ fees and $613,095.11 in
expenses. As directed by § 593(f)(2) of the Act, we forward-
ed copies of Lasater’s fee petition to the AG and the IC and
requested written evaluations of the petition. The court
expresses its appreciation to the IC and the AG for submit-
ting these evaluations, to which we have given due consider-
ation in arriving at the decision announced herein.
3
Discussion
The Independent Counsel statute 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
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.
28 U.S.C. § 593(f)(1). Accordingly, in order to obtain an
attorneys’ fees award under the statute, a petitioner must
show that all of the following requirements are met: 1) the
petitioner is a subject of the 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. See In re North (Dutton Fee
Application), 11 F.3d 1075, 1077–82 (D.C. Cir., Spec. Div.,
1993) (per curiam). The petitioner ‘‘bears the burden of
establishing all elements of his entitlement.’’ In re North
(Reagan Fee Application), 94 F.3d 685, 690 (D.C. Cir., Spec.
Div., 1996) (per curiam).
Among the issues in dispute regarding Lasater’s fee appli-
cation are whether Lasater was a subject of the IC’s investi-
gation; whether his fees were incurred by him; whether his
fees were incurred during the IC’s investigation; whether his
fees would have been incurred but for the requirements of
the Act; and whether his fees are reasonable. We discuss
each of these issues in turn.
Subject. Lasater claims that he was a subject of the IC’s
investigation solely because the ‘‘scope of the inquiry related
to him’’ showed that ‘‘there was a realistic possibility that he
would become a defendant.’’ But in her evaluation, the IC
states that ‘‘there is no support for [Lasater’s] assertion that
he was a subject’’ and ‘‘given [his] bare-bones argument, it is
difficult for the Independent Counsel to respond in any
4
concrete way, other than to say Lasater has offered nothing
to meet his burden of [proving that he was a subject].’’
The statute by its terms provides reimbursement of fees
only to ‘‘an individual who is the subject of an investigation
conducted by an independent counsel.’’ 28 U.S.C. § 593(f)(1)
(emphasis added). A fee applicant must establish that he is a
person whose conduct was within the scope of the indepen-
dent counsel’s investigation in the sense that ‘‘the Indepen-
dent Counsel might reasonably be expected to point the
finger of accusation’’ at him. Dutton, 11 F.3d at 1078.
Although regulatory counsel Fiske issued subpoenas to Lasa-
ter and his companies for the production of documents, there
is no evidence of any contact whatsoever between Lasater
and Independent Counsel Starr’s office. Therefore, IC Starr
could not reasonably have been expected to point the finger of
accusation at Lasater. We therefore agree with the IC that
Lasater has not established that he was a subject of the
independent counsel’s investigation.
Incurred by. The IC argues that Lasater’s request for
reimbursement is ‘‘wholly frivolous’’ in that the documents
submitted by Lasater show that all the fee payments were
made by his corporate entities, not by him. The DOJ agrees,
also noting that it appears the legal fees and claimed copying
expense were all paid for by corporations.
The Act states that this Court ‘‘[u]pon the request of an
individual TTT may TTT award reimbursement for those rea-
sonable attorneys’ fees incurred by that individual during that
investigation.’’ 28 U.S.C. § 593(f)(1). We have held that fees
are not incurred by an individual unless that person ‘‘actually
paid the fees or [is] legally liable for them.’’ In re North
(Gadd Fee Application), 12 F.3d 252, 255 (D.C. Cir., Spec.
Div., 1994) (per curiam). In In re North (Langton and
Mason Fee Application), 32 F.3d 609 (D.C. Cir., Spec. Div.,
1994) (per curiam) the fee petitioners were corporate employ-
ees who were investigated by an independent counsel. The
corporation paid the employees’ legal fees incurred in defense
of the investigation. We held that the petitioners were not
entitled to reimbursement because ‘‘the fees were really
5
incurred by the corporation, which cannot apply for reim-
bursement under the Act.’’ Id. at 610; see also Gadd, 12
F.3d at 254–55 (a corporation is not an individual and is thus
not entitled to request reimbursement under the Act). We
reach the same conclusion here, as the records indicate that
the attorneys’ fees were really incurred by Lasater’s corpo-
rate entities.
During the investigation. Lasater states that he is seek-
ing reimbursement only for fees that ‘‘relate to responding to
the subpoenas issued to him.’’ The IC points out, however,
that the OIC’s records ‘‘indicate that Lasater was only sub-
poenaed during Independent Counsel Fiske’s investigation,
and he produced all documents before Independent Counsel
Starr was appointed.’’
The Act states that we may award attorneys’ fees to ‘‘an
individual who is the subject of an investigation conducted by
an independent counsel pursuant to this chapter’’ if the fees
were ‘‘incurred by that individual during that investigation.’’
28 U.S.C. § 593(f)(1). We have held that this statutory
requirement must be strictly construed. In re Sealed Case,
890 F.2d 451, 454 (D.C. Cir., Spec. Div., 1989) (per curiam).
Consequently, for reimbursement purposes the fees must
have been spent in defense of an investigation conducted by a
statutory independent counsel. As the IC points out, howev-
er, Lasater incurred all of his fees in defense of the investiga-
tion conducted by regulatory independent counsel Fiske.
But for. Lasater claims that he is eligible for reimburse-
ment of his attorneys’ fees because he would never have been
investigated or required to produce any documents ‘‘but for
the Independent Counsel’s unprecedented investigation of Bill
and Hillary Clinton and their business activities.’’ He further
argues that the IC’s decision not to bring charges against him
‘‘underscores that [he] would not have been subjected to
being investigated and thus incurring attorneys’ fees if he had
been investigated by a [regular prosecutor].’’ As authority,
Lasater cites In re Dutton, 11 F.3d at 1080, for the proposi-
tion that subjects of independent counsel investigations
should only have to ‘‘pay[ ] those attorneys’ fees that would
6
normally be paid by private citizens being investigated for the
same offense by [a regular prosecutor].’’
The IC again calls Lasater’s argument ‘‘wholly frivolous.’’
She notes that Lasater and his corporations were subpoenaed
when the investigation was being conducted by regulatory
counsel Fiske, and thus within jurisdiction of the DOJ. As
such, ‘‘his assertion that he never would have been investigat-
ed by DOJ is demonstrably false.’’
We agree. In the recent past we have had several occa-
sions to consider the effect of Fiske’s investigation on the
‘‘but for’’ requirement for those petitioners caught up in the
so-called ‘‘Whitewater’’ investigation. See In re Madison
Guar. Sav. & Loan (Clinton Fee Application), 334 F.3d 1119,
1127 (D.C. Cir., Spec. Div., 2003) (per curiam); In re Madi-
son Guar. Sav. & Loan (Larry Fee Application), 358 F.3d
970, 976 (D.C. Cir., Spec. Div., 2004) (per curiam); In re
Madison Guar. Sav. & Loan (Livingstone Fee Application),
373 F.3d 1373, 1378 (D.C. Cir., Spec. Div., 2004) (per curiam).
In each instance we noted that the fee petitioner could not
claim that an investigation of the matter by an ordinary
prosecutor (e.g., the DOJ) would not have been undertaken in
the absence of the Act, as Fiske’s investigation was exactly
that. Since it appears that Fiske was the only prosecutor
who undertook an investigation of Lasater, his claim that he
would not have been investigated by an ordinary prosecutor
is groundless.
Reasonable. Lasater has not submitted any billing records
with his application, stating that ‘‘because of the lapse of
time’’ his lawyers’ records are no longer available. For
evidence that he did in fact incur and pay the fees, Lasater
has included with his petition photocopies of four checks
payable to his lawyers, totaling $250,000. The checks are
from the LFI Corporation, one of Lasater’s businesses. Sim-
ilarly, Lasater states that he ‘‘cannot locate the billing records
from Professional Support Services, Inc.’’ According to him,
these records would show that he paid $613,095.11 to that
company for photocopying. In lieu of the records, he states
that to his petition he ‘‘is attaching the tax return from LFI
7
Corporation which reflects the sale of a note for which the
proceeds were utilized to pay copying expenses to Profession-
al Support Services, Inc.’’ So although there are no billing
records, Lasater ‘‘respectfully requests that this Court con-
sider that the payments were in fact made and that he is an
astute business person and would not have paid fees and costs
that were unreasonable.’’
The IC asserts that the court should deny Lasater’s peti-
tion in its entirety because he has not shown that the fees
were reasonable, i.e., no evidence was presented as to the
prevailing rates for the services of comparable attorneys in
the community. See In re Donovan, 877 F.2d 982, 992 n.19
(D.C. Cir., Spec. Div., 1989). For its part, the DOJ states
that ‘‘the fee application is facially deficient because it lacks
any documentation in support of the fees or expenses.’’ Re-
garding the $250,000 in fees, the DOJ argues that ‘‘Lasater
has submitted no contemporaneous time records of the hours
worked by his attorneys, of their rates, or any description at
all of the subject matter of the work.’’ And regarding the
$613,095.11 in expenses, the DOJ notes that ‘‘[n]ot only is
there no support for his claim that he actually paid this
substantial copying charge, there is also no itemization that
would allow an assessment of the reasonableness of the
charge.’’
We have explained elsewhere that without documentation
adequately describing the legal work for which the fees were
incurred, it is ‘‘impossible for the court to verify the reason-
ableness of the billings, either as to the necessity of the
particular service or the amount of time expended on a given
legal task.’’ In re Sealed Case, 890 F.2d at 455. As there are
no billing records in the case before us, there is nothing upon
which we can make a judgment as to the reasonableness of
Lasater’s request.
Conclusion
Before an award can be made for reimbursement of attor-
neys’ fees incurred pursuant to an independent counsel inves-
tigation, the fee petitioner must meet all of the requirements
8
of § 593(f)(1) of the Act. For the reasons set forth above, we
find that petitioner Lasater has met none of them. The
petition is denied.