United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed September 28, 1999
Division No. 89-5
In re: Samuel R. Pierce, Jr.
(Abrams Fee Application)
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, as Amended
---------
Before: Sentelle, Presiding, Fay and Cudahy, Senior
Circuit Judges.
O R D E R
This matter coming to be heard and being heard before the
Special Division of the Court upon the application of Philip
Abrams 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. s 591 et seq. (1994), and it
appearing to the court for the reasons set forth more fully in
the opinion filed contemporaneously herewith, that the motion
is in part well taken, it is hereby
ORDERED, ADJUDGED, and DECREED that the Unit-
ed States reimburse Philip Abrams for attorneys' fees and
expenses he incurred during the investigation by Independent
Counsels Arlin M. Adams and Larry D. Thompson in the
amount of $229,949.80 this 28th day of September, 1999.
Per curiam
For the Court:
Mark J. Langer, Clerk
by
Marilyn R. Sargent
Chief Deputy Clerk
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed September 28, 1999
Division No. 89-5
In re: Samuel R. Pierce, Jr.
(Abrams Fee Application)
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, as Amended
---------
Before: Sentelle, Presiding, Fay and Cudahy, Senior
Circuit Judges.
ON APPLICATION FOR ATTORNEYS' FEES
Opinion for the Special Court filed Per curiam.
Per curiam: Philip Abrams petitions this Division of the
Court under s 593(f) of the Ethics in Government Act of
1978, as amended, 28 U.S.C. s 591 et seq. (1994) (the "Act"),
for reimbursement of attorneys' fees in the amount of
$389,334.52. Abrams is entitled to reimbursement only if he
establishes that these fees "would not have been incurred by
him but for the requirements of [the Act]," and meets certain
other statutory criteria. Because we find that Abrams has
established his entitlement under the statutory criteria for
reimbursement of a portion of the fees we will, for the
reasons set forth more fully below, allow recovery of
$229,949.80 under the Act.
Background
The Abrams application arises out of an investigation con-
ducted by Independent Counsel ("IC") appointed by this
Division under the provisions of the Act, to investigate allega-
tions of abuses, favoritism, and mismanagement at the De-
partment of Housing and Urban Development ("HUD") dur-
ing the 1980s under the tenure of Secretary Samuel R.
Pierce, Jr. We have recently set forth some details of the
background of this investigation in our opinions disposing of
two earlier applications from other persons whose conduct
became the subject of the investigation. See In re Pierce
(Kisner Fee Application), 178 F.3d 1356 (D.C. Cir., Spec.
Div., 1999) (per curiam); and In re Pierce (Olivas Fee
Application), 178 F.3d 1350 (D.C. Cir., Spec. Div., 1999) (per
curiam). We will therefore not rehash the full account of the
investigation, but will only discuss those facts necessary to
the resolution of Abrams' petition, to which we will allude as
we develop the law governing the disposition.
Abrams joined the Department of Housing and Urban
Development in 1981 as a General Deputy Assistant Secre-
tary. He thereafter was promoted to Assistant Secretary
and subsequently became Undersecretary of HUD in 1983.
During his tenure at HUD, Abrams' responsibilities included
a program called the "Moderate Rehabilitation Program"
("MRP") guaranteeing a determined level of rental income to
apartment building owners refurbishing apartments rented to
persons within specified income limits. Independent Coun-
sel's investigations of allegations, and ultimately prosecutions
of wide-ranging corruption within HUD included allegations
of unlawful favoritism and other illegalities in the disbursal of
funds under the program. After Abrams returned to the
private sector in 1984, he became involved in the development
and operation of programs receiving funding under the MRP.
The Office of Independent Counsel ("OIC"), as part of its
wide-ranging investigation, conducted inquiries into Abrams'
involvement and allegations that he and his associates had
been the beneficiaries of favoritism. Abrams incurred attor-
ney fees as a result of the investigation by the OIC, as well
as separate investigations by the HUD Inspector General, a
House Subcommittee, and a Senate Subcommittee. Abrams
was never indicted, but did receive a grant of immunity and
did provide testimony pursuant to that grant. The applica-
tion before us seeks reimbursement for attorneys' fees alleg-
edly incurred as a result of the Independent Counsel's in-
vestigation. To establish eligibility for reimbursement, and
entitlement to specific amounts, Abrams bears the burden of
establishing his qualifications under specific statutory ele-
ments, as we discuss below.
Analysis
The Statutory Elements
A. Subject
By its terms, the statute provides reimbursement of fees
only to "an individual who is the subject of an investigation
conducted by an independent counsel." 28 U.S.C. s 593(f)(1)
(emphasis added). Though the statute does not define "sub-
ject," we have previously held that status as a "mere witness"
is not sufficient to meet the elemental requirement of "sub-
ject" designation for purposes of the Act; a fee applicant
must establish that he is a person whose conduct was within
the scope of the independent counsel's investigation in the
sense that "the Independent Counsel might reasonably be
expected to point the finger of accusation" at him. In re
North (Dutton Fee Application), 11 F.3d 1075, 1078 (D.C.
Cir., Spec. Div., 1993) (per curiam). Otherwise put, he must
not merely have been a witness to the matters under investi-
gation, but a potential defendant of indictments that might
arise from that investigation. The filings of Abrams in this
application, as well as the responses of the Independent
Counsel and the Department of Justice establish that he was
not only a subject, but was expressly notified by the Indepen-
dent Counsel through his counsel that he was "a target of a
federal grand jury investigation ... into possible violations of
18 U.S.C. s 371 (conspiracy to defraud the United States),
and other provisions of federal criminal law, arising from or
related to" HUD programs during the period under investiga-
tion. Letter of the OIC, dated September 27, 1991.
We therefore conclude that Abrams has met the "subject"
requirement. There remains, however, a dispute as to the
period of time and the portion of the investigation, during
which Abrams was a "subject" and during which he would be
therefore entitled to full or partial reimbursement of his legal
expenses. Abrams asserts that he was a subject from the
time of the appointment of the Independent Counsel until the
completion of the investigation. The IC asserts that Abrams
has the period too long on both ends. He argues that
Abrams did not become a subject within the meaning of the
Act until September 27, 1991, when the OIC advised Abrams'
counsel that his client was a "target." He further argues that
Abrams' status as a "subject" did not continue until the OIC
issued his final report but only until May 5, 1994, when
Abrams received his court ordered immunity. After review-
ing the filings of the parties and relevant legal authorities, we
conclude that Abrams is correct as to the commencement of
his status as a subject but that the IC is correct as to its
termination.
Our reasoning in reaching this conclusion focuses on the
definition of the subject as a person "whose conduct was
within the scope of the [Independent Counsel] investigation,
in the sense that the [Independent Counsel] was examining
conduct of his in a way that would lead a reasonably coun-
seled person at the time of incurring the fees to believe that
there was a realistic possibility that he would become a
defendant." Dutton, 11 F.3d at 1079. In the real world, the
reasonable apprehension of defendant status does not begin
at the receipt of a grand jury subpoena, nor a target letter.
When a person, such as Abrams, knows that a grand jury is
investigating his conduct, and knows that he is or has been
engaged in conduct likely to cause a prosecutor to suspect
him of a crime, his objective apprehension of an accusation
may commence long before his official designation as a target.
Abrams knew that the IC was charged with investigating
HUD programs in which he had participated in just such a
fashion as to attract the prosecutorial attention of the IC. It
was at least reasonable for him to believe that there was a
realistic possibility that he would require a legal defense.
Therefore, we can conclude that his status as a subject of the
independent investigation began with the appointment of the
IC. However, we also conclude that the IC is closer to the
mark in defining the termination of Abrams' status as a
subject. On May 5, 1994, at the conclusion of the negotia-
tions between Abrams and the OIC, Abrams received court
ordered immunity under 18 U.S.C. s 6002. Thereafter, he
testified before the grand jury in furtherance of the IC's
investigation, under the statutory assurance that his testimo-
ny could not be used against him in any prosecution for the
matters as to which he testified. The IC argues, and we
agree, that thereafter Abrams could not reasonably contem-
plate that he would become a defendant in any further
prosecution arising from the Independent Counsel's investiga-
tion.
Abrams points out, correctly, that the immunity conferred
upon him under the statute was not transactional. That is, it
did not guarantee that he would not be prosecuted. The use
immunity arising from compelled testimony under s 6002,
"does not confer transactional immunity under which the
witness could not be prosecuted at all for the transactions
about which he testifies," United States v. Poindexter, 859
F.2d 216, 219 (D.C. Cir. 1988); see also Kastigar v. United
States, 406 U.S. 441, 461 (1972), but only provides that his
testimony would not be used in any such prosecution. He
therefore argues that the issuance of the order did not
terminate his status as a subject because he could have been
prosecuted either for giving a false statement after the grant
or even for events before the grant of immunity if sufficient
evidence independent of his own testimony were brought
forth. This is not a frivolous argument. Indeed, we have
held in the past that, on specific facts, a reasonably counseled
fee applicant having received a grant of use immunity may
nonetheless "believe that there [remains] a realistic possibility
that he would become a defendant." In re North (Cave Fee
Application), 57 F.3d 1117, 1120 (D.C. Cir., Spec. Div., 1995)
(per curiam) (quoting Dutton, 11 F.3d at 1079). However,
this is not the norm. As we have also held, even though "the
grant of use immunity is not dispositive, it does change the
reasonable perception" as to whether the immunized witness
can apprehend becoming a defendant. Dutton, 11 F.3d at
1079. The one case in which we have held a subject status of
an immunized witness to continue past the immunity grant
and to the conclusion of the investigation involved a fee
applicant who demonstrated that other witnesses had provid-
ed significant incriminating evidence against him; that the
Independent Counsel had not made any indication of termi-
nation of his subject status, even at the time of the final
report; and that the Independent Counsel had prosecuted
two other subjects who had received use immunity. See
generally Cave, supra, 57 F.3d 1117. No such extraordinary
facts are present here. Therefore, the norm prevails.
In short, we conclude that a reasonably counseled person
situated as Abrams was would have obtained counsel to
defend against the Independent Counsel's investigation and
that he met the statutory requirement for subject status. We
further conclude, however, that for purposes of the reim-
bursement provision of the statute, he, like the application in
Dutton, lost his subject status "at such time as the attorneys
he employed in that defense successfully negotiated for him
the status of immunized witness as opposed to likely defen-
dant." Dutton, 11 F.3d at 1079.
B. The "But for" Requirement
The only other statutory element necessary for reimburse-
ment eligibility as to which the parties are in dispute is the
requirement that subjects of the investigation may be reim-
bursed only for "attorneys' fees ... which would not have
been incurred but for the requirements of [the Ethics in
Government Act]." 28 U.S.C. s 593(f)(1) (emphasis added).
See In re Sealed Case, 890 F.2d 451, 452 (D.C. Cir., Spec.
Div., 1989) (per curiam) ("All requests for attorneys' fees
under the Act must satisfy the 'but for' requirement of [the
Act]."). It is on this requirement that the earlier fee applica-
tions in the Pierce investigation have foundered. Kisner, 178
F.3d at 1358-62; Olivas, 178 F.3d at 1353-55. In Kisner and
in Olivas, we noted that we have repeatedly held "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 North (Bush Fee Applica-
tion), 59 F.3d 184, 188 (D.C. Cir., Spec. Div., 1995) (per
curiam) (quoting Dutton, 11 F.3d at 1079). We further noted
in those decisions that this difficulty arises not only from the
inherent difficulty of establishing a negative but also from the
"high component of speculation" involved in this particular
negative. Kisner, 178 F.3d at 1359; Olivas, 178 F.3d at 1353.
Nonetheless, as we further noted in the two prior applica-
tions, we have held that petitioners
qualif[ied] for an award of fees in the face of the but-for
test in at least four (4) circumstances:
1. When the independent counsel's investigation sub-
stantially constituted duplication of the preliminary in-
vestigation 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 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.2d at 438 (citing In re Meese, 907 F.2d 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 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, 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, 925
F.2d at 442; In re North (Dutton Fee Application), 11
F.3d at 1080.
Kisner, 178 F.3d at 1359; Olivas, 178 F.3d at 1354. These
categories are not exhaustive, and an applicant can also meet
the "but for" test by showing "some sort of 'unique factual
features that but for the requirement of the Act would have
permitted a quick termination' of the investigation or other-
wise not have subjected him to the fees for which he peti-
tions." Kisner, 178 F.3d at 1359 (quoting Nofziger, 925 F.2d
at 439). See also Olivas, 178 F.3d at 1354.
In both Olivas and Kisner we concluded that neither
applicant had put himself in any of the four categories or
otherwise established his qualification under the "but for"
criterion. Abrams offers multiple justifications for why he
has met the "but for" test. All but one duplicate arguments
advanced in Olivas and Kisner and we reject them for the
reasons set forth in those opinions. Abrams, however, has
put himself in the fourth category at least as to a portion of
the legal fees for which he now seeks reimbursement.
Abrams makes the "but for" argument on multiple levels.
Like the petitioners in Olivas and Kisner, he first seeks to
establish that all attorneys' fees incurred during the entire
investigation meet the but-for standard because the IC con-
ducted an investigation that a professional or politically ap-
pointed prosecutor would not have conducted. We rejected
that theory in each of the prior cases and we reject it now.
As we stated in disposing of both the Olivas and Kisner
petitions, "if the investigative act generating the defensive
cost would, in the absence of the Act have been pursued by
other authorities--'had the case been handled by the Depart-
ment of Justice or other executive authorities rather than the
independent counsel'--then Congress did not contemplate the
award of counsel fees." Kisner, 178 F.3d at 1360 (quoting
Dutton, 11 F.3d at 1080); Olivas, 178 F.3d 1354 (same). We
rejected that argument in both Olivas and Kisner and reject
it now because we simply "cannot hold that the Attorney
General and other investigative authorities would not have
pursued allegations as deep and widespread as those revealed
by the Independent Counsel's investigations had there been
no such Act." Kisner, 178 F.3d at 1360; Olivas, 178 F.3d at
1355.
However, Abrams is able to establish something missing in
the two prior applications. A portion of the IC's investigation
of Abrams' conduct was focused on determining whether he
had properly complied with a provision of the HUD hand-
book, an inquiry not normally pursued in a criminal investiga-
tion. This, in a sense, parallels the investigation by an earlier
Independent Counsel which we reviewed in Dutton. That
earlier Independent Counsel investigated activities under an
appropriations amendment which had never before or since
been treated by "executive branch authorities ... as having
criminal consequences." Dutton, 11 F.3d at 1080. We held
in Dutton, among other cases, that defense against that sort
of independent counsel investigative activity does meet the
"but for" requirement. See id.; see also In re North (Gadd
Fee Application), 12 F.3d 252, 256 (D.C. Cir., Spec. Div.,
1994) (per curiam). Furthermore, Abrams has demonstrated
that the IC pursued criminal allegations involving an alleged
violation of a tax regulation by Mr. Abrams' signing a certain
low-income tax credit application which amounted to a far
more rigorous standard of the Tax Code than ordinarily
would have been applied to an ordinary citizen, and we
further hold that this also makes the resulting fees under the
"but for" requirement. Cf. In re Donovan, 877 F.2d 982,
989-90 (D.C. Cir., Spec. Div., 1989) (per curiam). In short,
we conclude that Abrams has established his entitlement to
reimbursement of a portion of his legal fees under the "but
for" requirement insofar as those fees are generated by the
Independent Counsel's pursuit of the handbook violation and
of the rigorous standard of the Tax Code.
It is difficult, if not impossible, to determine the precise
portion of those legal fees incurred by Abrams between
March 1, 1990, and May 5, 1994, which would not have been
incurred but for the ICs appointment as opposed to those fees
that would have been incurred in the event of investigation by
traditional constitutional and statutory authorities. Arguably,
therefore, we should reject the entire application, as Abrams
bears the burden of establishing each element of entitlement.
We think, however, that this would be too harsh a rule and
too high a standard. Given the difficulty of sorting out the
fees attributable to each separate element of an investigation,
we doubt that the statutory provision for the award of fees
would bear much reason for being if we applied the standard
of proof so rigorously. We therefore will subject the fees,
after other deductions relating to the date requirement estab-
lished above and the reasonableness standards we set forth
below, to a further reduction of twenty-five percent (25%) to
reflect the indisputable fact that some portion of the fees
would have been incurred with or without the passage of the
Act.
As there is no serious dispute as to any other element of
eligibility for the award of attorneys' fees, we will enter an
award in Abrams' favor as to those fees incurred by him
which meet the standards applicable to fee awards under the
Act.
C. Reasonableness
Sufficiency of billing documentation. To establish that he
is entitled to reimbursement for particular items of attorneys'
fees under the Act, the fee petitioner must provide the court
with the attorneys' billing records that describe the work
performed in sufficient detail to establish that the work is
reasonably related to a defense against the IC's investigation.
See, e.g., In re North (Dwyer Fee Application), 120 F.3d 293,
297 (D.C. Cir., Spec. Div., 1997) (per curiam); In re Donovan,
877 F.2d at 994. In their evaluations, the IC and the DOJ
point out that a number of billing entries do not meet these
criteria. Both the IC and the DOJ note that the billing
records contain many entries that inadequately describe the
work performed--giving only very generalized descriptions,
such as "Various calls" or "Review of materials." See, e.g.,
Fulbright & Jaworski, Billing Memorandum for 7/25/91 to
8/29/91, Appendix, Memorandum of Points and Authorities in
Support of Petition of Philip Abrams for Reimbursement of
Attorneys' Fees and Costs. As we have held previously,
adequate documentation of legal work performed is a neces-
sary ingredient for the reimbursement of attorneys' fees, see
In re Meese, 907 F.2d 1192, 1204 (D.C. Cir., Spec. Div., 1990)
(per curiam), and inadequate documentation "makes it impos-
sible for the court to verify the reasonableness 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. In prior cases we have imposed a ten
percent (10%) reduction of the final fee award for similar
insufficiencies, see, e.g., In re North (Gardner Fee Applica-
tion), 30 F.3d 143, 147-48 (D.C. Cir., Spec. Div., 1994) (per
curiam); In re Meese, 907 F.2d at 1204, and we will impose
the same reduction here.
Additionally, the billing entries for July 27 through August
5, 1993, totaling $4420, have no work description whatsoever.
We will deduct this amount from the total amount prayed for,
as these omissions "do[ ] not allow the court to evaluate
whether the time billed was spent on issues that have been
found not within the contemplation of s 593(f) and this com-
pels the court to exclude such hours." In re Donovan, 877
F.2d at 995.
Defensive monitoring. The IC points out that several
billing entries appear to constitute "defensive monitoring,"
that is, the observation of other ongoing investigations and
prosecutions conducted by the IC. As we have previously
suggested, this may be a useful and even valuable activity for
defense attorneys to perform, but it is not within the realm of
reasonableness generally available to criminal defendants, nor
is it one which we believe Congress contemplated as within
the realm of reasonableness for which the taxpayers should
reimburse subjects of independent counsel investigations.
See Gardner, 30 F.3d at 147 (rejecting fees for "the 'defensive
monitoring' of the ongoing prosecution [brought by the Inde-
pendent Counsel]"); In re North (Fee Applications of Shields
and Gruner), 53 F.3d 1305, 1308 (D.C. Cir., Spec. Div., 1995)
(per curiam) (holding that "fees connected to the monitoring
of the on-going prosecution of Iran-Contra defendants" were
not reimbursable). Consistent with our precedent, we must
apply the same standard to the Abrams application and reject
the fee for defensive monitoring. A review of the billing
documents indeed reveals a number of entries that fall into
this category. Many of these entries are grouped with other
entries for the same date, and for purposes of making the
deductions we will assume that each entry for that date took
up an equal amount of time. We will thus divide the number
of entries for each date into the amount billed, and deduct of Entries
that amount from the total amount petitioned.
Number Amount
of Entries Billed Amount
Date Defensive Monitoring Entry for Date for Date Deducted
4/16/92 "review of V. Cruse indictment" 3 $280 $93.33
5/7/92 "telecon w/ S. Wehner re: status of D.
Dean trial proceedings" 3 $240 $80.00
5/21/92 "review pleadings filed in Dean case" 4 $360 $90.00
5/28/92 "Review of material in Dean case" 1 $150 $150.00
6/03/92 "Took notes at Debbie Dean's hearing
with Judge Gesell and prepared a
memo for the file" 1 $220 $220.00
6/04/92 "Proofed and edited memo to file re-
garding Debbie Dean's hearing with
Judge Gesell" 1 $110 $110.00
6/09/92 "telecon w/counsel for D. Dean re: status" 3 $200 $66.66
6/15/92 "Attended Debbie Dean's hearing and
wrote memo to the file" 1 $165 $165.00
6/16/92 "Edited memo to file on 6/15/92 Dean
hearing" 1 $41.25 $41.25
7/07/92 "various telecons re: Dean supersed
ing indictment" 2 $200 $100.00
7/08/92 "Telecon w/D. Dean's counsel; review
Dean superseding indictment" 1 $280 $280.00
7/09/92 "Review of Dean indictment" 1 $150 $150.00
7/13/92 "Attended Dean hearing and wrote
memo to file" 1 $137.50 $137.50
7/14/92 "Read Dean's superseding indictment" 1 $110 $110.00
7/29/92 "conference w/R. Beckler re: status of
Dean case" 2 $200 $100.00
8/06/92 "Telecon w/C. Feldman re: status of
Dean case" 3 $120 $40.00
10/14/92 "Telecon with P. Abrams re: DeBar-
tolomeis plea; telecon with C. Feld-
man re: same; telecon with R.
Beckler re: same" 1 $120 $120.00
Number Amount
of Entries Billed Amount
Date Defensive Monitoring Entry for Date for Date Deducted
10/15/92 "Review pleadings re: S. DeBartolo-
meis plea" 1 $160 $160.00
11/10/92 "review recent developments in Wilson
case" 3 $280 $93.33
12/11/92 "review Demery superseding indict-
ment" 4 $1240 $310.00
12/30/92 "Review of Demery indictment" 3 $150 $50.00
2/10/93 "Review Winn plea agreement and re-
lated materials" 4 $360 $90.00
2/22/93 "Meeting with J. Hume and R. Beckler
r: Demery indictment" 1 $585 $585.00
3/08/93 "Prepare for meeting with P. Abrams
re: Demery indictment; review doc-
uments re: same; meet with P.
Abrams re: Demery indictment and
re: status." 1 $675 $675.00
4/21/93 "Various telecons with P. Abrams re:
Wilson sentencing" 2 $45 $22.50
9/17/93 "review Queenan indictment" 3 $225 $75.00
9/20/93 "telecon with A. Pings re: status of
Queenan prosecution" 4 $225 $56.25
9/29/93 "Review of material and attendance at
trial of Deborah G. Dean" 1 $330 $330.00
9/29/93 "attend sessions of D. Dean trial" 5 $585 $117.00
3/18/94 "telecon with S. Rosenbaum re: out-
come of Queenan trial" 3 $160 $53.33
3/25/94 "Telecon with A. Pings re: outcome of
Queenan trial" 3 $240 $80.00
4/11/94 "attending sentencing of P. Winn at
US District court; conference with
M. McGovern regarding the same" 1 $48.75 $48.75
4/25/94 "review Strauss plea" 3 $440 $146.66
_______
Total Deduction: $4946.56
Miscellaneous. Finally, on 12/15/92 is the entry, "telecon
with P. Abrams and B. Kaufman re: divorce proceedings."
We do not see how this entry could in any way be related to
Abrams' defense, and therefore, again using the formula from
above, divide the three entries from that date into the $1320
billed, and subtract the quotient of $440 from the amount
prayed.
Conclusion
Abrams seeks reimbursement for attorneys' fees in the
amount of $389,334.52. In accordance with the analysis set
forth above, we will make the following deductions from this
amount:
1. $11,740.39 for time and expenses billed before the
Independent Counsel was appointed on March 1, 1990.
2. $27,121.20 for time and expenses billed after
Abrams' grant of immunity on May 6, 1994.
3. $4420 for billing entries for July 27 through Au-
gust 5, 1993, for which there are no work descriptions.
4. $4946.31 for time expended on defensive monitor-
ing.
5. $440 for work done on "divorce proceedings."
6. 10% deduction for insufficient billing descriptions.
7. 25% deduction reflecting the court's estimate of
fees that would have been incurred without the passage
of the Act.
For the reasons set forth above, it is ordered that Abrams
be awarded $229,949.80 in reasonable attorneys' fees and
expenses. The computation is set forth in the appendix.
Appendix
Total Fee Request $389,334.52
Deductions in Opinion
1. Fees before IC appointed 11,740.39
2. Fees after "subject" status ended 27,121.20
3. Billing entries with no work descriptions 4420.00
4. Time expended on defensive monitoring 4946.56
5. Work performed on divorce proceedings 440.00
________
Total of specific deductions 48,668.15
Request minus specific deductions 340,666.37
6. 10% deduction for insufficient descriptions 306,599.73
7. 25% deduction reflecting fees incurred without Act 229,949.80
TOTAL AWARD $229,949.80
In Re Samuel R. PIERCE, Jr. (Abrams Fee Application)
Court: Court of Appeals for the D.C. Circuit
Date filed: 1999-09-28
Citations: 190 F.3d 586, 338 U.S. App. D.C. 97
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