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 May 11, 2004
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(MARCECA 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 Anthony
B. Marceca 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 in part well taken, it is hereby
ORDERED, ADJUDGED, and DECREED that the Unit-
ed States reimburse Anthony B. Marceca for attorneys’ fees
2
and expenses he incurred during the investigation by the
Independent Counsel in the amount of $82,033.50.
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 May 11, 2004
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS &
LOAN (MARCECA 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: Anthony B. Marceca 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
reimbursement of attorneys’ fees in the amount of $188,968.44
that he claims were incurred during and as a result of the
investigation conducted by the Independent Counsel. Be-
cause we find that Marceca 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 $82,033.50.
2
Background
In early 1995, during a congressional investigation into the
firings of White House Travel Office employees, it was discov-
ered that the Clinton administration had requested confiden-
tial FBI background reports on a large number of persons,
listing access to the White House as the reason for the
request. Many of these persons, however, did not work for
the Clinton administration; instead, they were former staff
members from both President Reagan’s and President Bush’s
administrations who would have no need for access to the
White House grounds.
Because the request for the FBI background reports in-
cluded at least one travel office employee, the office of
Independent Counsel Kenneth W. Starr (hereinafter ‘‘IC’’ or
‘‘OIC’’), which had previously had its jurisdiction expanded to
include the allegedly illegal Travel Office firings, issued sub-
poenas to appear before the grand jury to two White House
employees involved in the request. One of these employees
was Anthony Marceca, the fee petitioner here, who had
apparently requested the reports. He was an employee of
the White House Office of Personnel Security, whose duty it
was to assemble background information on persons in need
of access to the White House. Following the grand jury
appearances, the OIC informed the Attorney General that it
would not be conducting an investigation into the matter as it
was not within the OIC’s current jurisdiction. The Attorney
General then immediately began a preliminary investigation
into the matter pursuant to the Independent Counsel statute.
See 28 U.S.C § 591. Although section 592 (a)(1) of the
statute allows 90 days for the AG to complete a preliminary
investigation in order to make a determination of whether
further investigation by an independent counsel is warranted,
the AG in the present case referred the FBI files matter to
the OIC after only two days. In referring the case, the AG
stated that she had concluded that further investigation of the
matter was warranted and ‘‘that additional preliminary inves-
tigation TTT would not be appropriate in this situation because
of the political conflict of interest.’’ See Application for
3
Expansion of Independent Counsel’s Jurisdiction 3 (June 21,
1996).
The Clinton administration, which apparently considered
the situation to be only a ‘‘bureaucratic blunder,’’ faulted the
Secret Service for providing to Marceca an outdated and
inaccurate list of ‘‘holdover’’ employees from the previous
administration. Employees of the Secret Service, however,
presented testimony that its computer system was not capa-
ble of producing such an outdated list. Consequently, suspi-
cions arose that the Clinton administration deliberately re-
quested the files in order to obtain derogatory information on
members of the previous administration, and that Marceca
made knowing and willful false statements when requesting
the FBI files. After conducting an extensive investigation,
during which Marceca was granted use immunity, the IC
determined that no charges would be brought as Marceca had
in fact used an outdated list supplied by the Secret Service.
Pursuant to section 593(f)(1) of the Act, Marceca now
petitions the court for reimbursement of attorneys’ fees that
he allegedly incurred in defense of the IC’s investigation, in
the amount of $188,968.44. As directed by section 593(f)(2) of
the Act, we forwarded copies of Marceca’s fee petition to the
Attorney General and the IC and requested written evalua-
tions of the petition. The court expresses its appreciation to
the IC and the Attorney General for submitting these evalua-
tions, which we have given due consideration in arriving at
the decision announced herein.
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.
4
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). There appears to be little disagree-
ment that Marceca was a ‘‘subject’’ of the IC’s investigation
or that his fees were incurred ‘‘during’’ that investigation.
We will therefore limit our discussion to the ‘‘but for’’ and
‘‘reasonable’’ requirements.
* * * * * * * * * *
The ‘‘but for’’ requirement. Marceca argues that he
satisfies the ‘‘but for’’ requirement under two theories previ-
ously identified by the Court: 1) when the subject is preju-
diced by the Department of Justice’s failure to comply with
the substantive protective features of the Act; and 2) when
(according to Marceca) ‘‘one of the Act’s peculiar restrictions
on the conduct of preliminary investigations has forced the
Attorney General to refer to an independent counsel an
investigation that the Justice Department acting according to
its standard policies would have abandoned at an early stage
for lack of probable cause.’’ Application for Attorneys’ Fees
at 19, 24–25.
With respect to theory (1), Marceca’s argument relies
extensively upon a favorable comparison of his case to In re
Meese, 907 F.2d 1192 (D.C. Cir., Spec. Div., 1990). In that
case, an independent counsel had been appointed to investi-
gate Franklin C. Nofziger’s relationship to the Wedtech
company. Subsequently, the Acting Attorney General by
letter referred to the independent counsel the investigation of
Attorney General Edwin Meese’s relationship to Wedtech.
No preliminary investigation as mandated by the Act was
5
conducted. Nevertheless, the Acting Attorney General’s re-
ferral letter urged the independent counsel to accept the
referral for numerous reasons, including the suggestion that
public confidence in the administration of justice would be
better served if the investigation was conducted independent-
ly. The Court stated that the reasons given were ‘‘insuffi-
cient to constitute the ‘reasonable grounds’ the statute re-
quires to justify the application for further investigation by an
independent counsel,’’ id. at 1199, and that the ‘‘but for’’
requirement was therefore satisfied in part because of ‘‘the
basis upon which the referral was made.’’ Id. at 1201. In
sum, the Court noted that the investigation of Meese did not
follow the statutorily prescribed procedure, i.e., it did not
originally begin following an application to, or order from, the
Court, and the preliminary investigation was not completed in
such a manner as to conclude that there were ‘‘reasonable
grounds’’ to believe that further investigation was warranted.
Id. at 1197.
Marceca asserts that in his case ‘‘Meese is directly control-
ling.’’ He notes that the Act gives the Attorney General up
to ninety days to conduct a preliminary investigation, that
this ninety days is the ‘‘usual duration of a preliminary
investigation,’’ that ‘‘as in Meese, the Justice Department
terminated the preliminary investigation process before it had
a chance to begin, with the entire process in this case lasting
just two days,’’ and that as in Meese there was no ‘‘statutori-
ly-required finding that there were ‘reasonable grounds’ to
believe that the subject of the investigation had engaged in
any criminal activity.’’ Marceca further argues that, ‘‘as in
Meese, the Justice Department’s avowed justification for cut-
ting short the preliminary investigation was to avoid the
perception of a ‘political conflict of interest.’ ’’ He summa-
rizes his argument by asserting that the DOJ failed to comply
with the substantive protective features of the Act by not
conducting a normal preliminary investigation. Application
at 21.
Marceca goes on to argue that he was ‘‘prejudiced’’ by the
DOJ’s failure to comply. He explains that approximately one
week before the expansion of the IC’s jurisdiction to encom-
pass this matter, two OIC attorneys assigned to the Travel
6
Office inquiry had assured Marceca’s lawyer at his grand jury
appearance ‘‘that the FBI files matter was a ‘tempest in a
teapot’TTTT and that they expected the matter would go
away quickly without any difficulty.’’ Application at 22
(emphasis supplied by Marceca). Marceca further notes that
he was served a grand jury subpoena by the OIC attorneys
without being advised that he was a target of any criminal
investigation. Taking all of this into consideration, Marceca
claims that ‘‘it is quite apparent that in this case, experienced
prosecutors TTT conclude[d] after conducting an initial investi-
gation of the matter that the circumstances did not call for a
criminal investigation of [him],’’ and he was therefore preju-
diced because he ‘‘did not receive the benefit of an early
disposition that he would have received had his case been
handled in the ordinary manner.’’ Application at 24.
The IC in her evaluation disputes Marceca’s contention that
in the absence of the Act a similar investigation of the matter
would not have been conducted. The IC notes that on the
day of Marceca’s grand jury appearance, when the above-
mentioned statements of the OIC prosecutors were supposed-
ly made, the only information available to the OIC was the
testimony of Marceca and one other witness stating that the
access list had been produced by the Secret Service in the
normal course of business and was not part of any criminal
scheme. Soon thereafter, however, Secret Service officials
testifying before Congress stated that their computers were
not capable of producing such an outdated access list. This
contradictory testimony, according to the IC, ‘‘raised very
serious questions and concerns for investigators,’’ including
the possibility that false statements were made and restricted
information obtained. Consequently, according to the IC,
‘‘whatever law enforcement agency was tasked with investi-
gating the matter TTT would necessarily have to conduct an
investigation similar to that which was actually conducted.’’
IC Evaluation at 8–9.
The DOJ in its evaluation also disputes Marceca’s claim
that this matter would not have been investigated in the
absence of the Act. Contrary to Marceca’s assertions, the
DOJ notes that ‘‘the preliminary investigation here revealed
7
substantial and credible evidence of possible criminal activity
by Mr. Marceca,’’ DOJ Evaluation at 6, leading the Attorney
General to conclude that ‘‘further investigation is warranted
to determine whether the inaccurate request forms were
knowing and willful false statements in violation of 18 U.S.C.
§ 1001.’’ See Application for Expansion of Independent
Counsel’s Jurisdiction 3 (June 21, 1996).
We first note that although Marceca states that Meese is
controlling here, the two cases appear to be distinguishable.
In her application to the Court for expansion of the IC’s
jurisdiction, the AG, in contrast to the situation in Meese,
stated that she had ‘‘commenced a preliminary investigation.’’
Although after a very short period of time she ‘‘concluded
that additional preliminary investigation TTT would not be
appropriate in this situation because of the political conflict of
interest,’’ and although she did not use the ‘‘reasonable
grounds to believe that further investigation is warranted’’
phrase from the Act, she nevertheless summarized the evi-
dence obtained up to that point in time and consequently
‘‘concluded that further investigation is warranted to deter-
mine whether the inaccurate request forms were knowing and
willful false statementsTTTT’’ No similar conclusion was ever
reached in Meese.
We nonetheless think Marceca makes a valid point that he
did not receive the benefit of the protections built into the
Act. As he points out, we have in the past awarded fees
where a technical or apparent violation would not have been
pursued against a private citizen by a professional prosecutor
but was pursued at substantial length and at substantial
expense by an independent counsel appointed pursuant to the
statute. See, e.g., In re Segal (Sagawa Fee Application), 151
F.3d 1085, 1088–89 (D.C. Cir., Spec. Div., 1988) (per curiam).
Here, it appears probable that a preliminary investigation by
the DOJ, conducted in the usual ninety days instead of two,
would have revealed that the list provided by the Secret
Service was outdated, contrary to the testimony before the
Congress. And we note that the OIC tried once to hand the
matter back to DOJ before it ever got off the ground, and
that experienced counsel called it a ‘‘tempest in a teapot.’’
8
Consequently, we find that Marceca has cleared the ‘‘but for’’
hurdle and that he is entitled to an award of attorneys’ fees,
subject to the reductions set forth below.
The ‘‘reasonable’’ requirement. Marceca claims that he
should be reimbursed for time spent on his representation
before the congressional committees investigating the FBI
files matter and in a civil suit brought by Judicial Watch.
Although he acknowledges that ‘‘the tasks for which fees are
sought must be tasks that are necessitated by the indepen-
dent counsel investigation,’’ he argues that he would not have
incurred any attorneys’ fees ‘‘were it not for the fact that [he]
had been made the target of a criminal investigation.’’ He
asserts that in both the congressional investigation and the
civil suit he needed advice of counsel only to preserve and
protect his Fifth Amendment privilege vis-a-vis the IC’s
investigation. In other words, he is apparently claiming that
absent the IC’s investigation, he would not have had to retain
counsel for the other two matters and therefore he should be
reimbursed for his attorneys’ fees spent on them.
For authority Marceca cites In re North (Adkins Fee
Application), 33 F.3d 76 (D.C. Cir., Spec. Div., 1994), in which
the court allowed reimbursement for a portion of fees in-
curred in efforts to obtain immunity for Adkins from the
Iran–Contra Congressional Committee. The court reasoned
that the efforts to obtain immunity for Adkins ‘‘served a dual
purpose’’ in that the immunity was sought ‘‘both to facilitate
his testimony before the Committee and to impair any effort
of the Independent Counsel to prosecute him,’’ and conse-
quently the attorneys’ fees ‘‘were in part incurred to shield
[Adkins] from the Independent Counsel.’’ According to
Marceca, Adkins shows that the court ‘‘has recognized that [a
subject] often needs counsel TTT to protect [the subject’s]
interests in defending against the criminal investigation when
other inquiries or proceedings threaten to interfere with
those interests,’’ and that the fees incurred for such counsel
are, as here, reimbursable. Application at 27.
In her evaluation, the IC, citing to In re North (Gardner
Fee Application), 30 F.3d 143 (D.C. Cir., Spec. Div., 1994),
9
and In re North (Gadd Fee Application), 12 F.3d 252 (D.C.
Cir., Spec. Div., 1994), asserts that ‘‘[t]his Court has frequent-
ly held that fees related to parallel congressional investiga-
tions are not recoverable under the Act.’’ Evaluation at 11.
The IC notes that in Gardner the court disallowed fees
incurred by Gardner in connection with efforts to enable him
to speak to the House Intelligence Committee, with the court
stating that ‘‘the Act provides recovery only for those fees
‘rendered in asserting the merits of the subjects’ defense
against the criminal charges being investigated.’ ’’ 30 F.3d at
147 (emphasis in original) (quoting In re Olson, 884 F.2d at
1427). The IC suggests that if any award is given, these fees
should be deducted. Evaluation at 13–14.
The DOJ in its evaluation likewise asserts that fees in-
curred as a result of a congressional investigation are not
reimbursable under the Act, even if the congressional investi-
gation ‘‘addresses a related (or even the same) subject as an
OIC investigation.’’ For authority, the DOJ cites In re North
(Shields/Gruner Fee Application), 53 F.3d 1305, 1308 (D.C.
Cir., Spec. Div., 1995), in which the court disallowed fees
‘‘arising from the conferences with and testimony before the
Senate Intelligence Committee’’; and In re North (Haskell
Fee Application), 74 F.3d 277, 282 (D.C. Cir., Spec. Div.,
1996), where the court, citing Shields/Gruner, stated that
‘‘fees incurred in connection with congressional matters are
not reimbursable under [the Act].’’
Both the IC and the DOJ argue that other fees should also
be denied because of a lack of reasonableness. Specifically,
the IC claims certain entries are inadequately documented;
certain tasks were performed by multiple attorneys, while
other tasks involved defensive monitoring. For its part, the
DOJ also claims inadequacy of some of the billing documenta-
tion, duplication of effort on the part of Marceca’s attorneys,
and inclusion of fees for media-related activities.
We agree with the IC and the DOJ that our general rule in
past decisions has been that fees related to parallel congres-
sional investigations are not recoverable under the Act, see In
re North (Gardner Fee Application), 30 F.3d at 147; In re
10
North (Gadd Fee Application), 12 F.3d at 257, and we think
this general rule should prevail here. Especially is this true
since it simply cannot be the case that the congressional fees
would not have been incurred ‘‘but for’’ the provisions of the
Act. Once it became apparent that this politically-charged
series of events had occurred, Congress would not have
resisted undertaking the investigation that it did. While we
have at least once in the past awarded fees for a portion of a
representation before a congressional committee, the portion
we awarded was for the attempt to negotiate an immunity
which would have in fact benefitted (probably completely) the
petitioner’s defense against the independent counsel investi-
gation. In re North (Adkins Fee Application), 33 F.3d at 77.
The instant case reflects no such causal connection between
the independent counsel investigation and the congressional
investigation (or between the independent counsel investiga-
tion and the civil action). Indeed, it is unthinkable that
Congress would have let this politically-charged incident go
unexamined in an election year, whatever statutes were on
the books with reference to the independent counsel or
anything else. We will therefore not allow reimbursement
for any of the substantial fees connected with the congres-
sional investigation or civil action.
Furthermore, the award will not include any fees incurred
for media-related activities, see, e.g., id. at 690; In re Dono-
van, 877 F.2d 982, 994 (D.C. Cir., Spec. Div., 1989), or for
‘‘defensive monitoring’’ of other cases, see, e.g., In re North
(Gardner Fee Application), 30 F.3d at 147.
Finally, as both the IC and the DOJ point out, many of the
billing entries submitted by both attorneys do not state with
sufficient specificity the task worked on. As we have held
previously, adequate documentation of legal work performed
is a necessary ingredient for the reimbursement of attorneys’
fees, see In re Meese, 907 F.2d at 1204, and inadequate
documentation ‘‘makes it impossible 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 451, 455 (D.C. Cir.,
Spec. Div., 1989). In prior cases we have imposed a ten
11
percent (10%) reduction of the final fee award for similar
insufficiencies, see, e.g., In re North (Gardner Fee Applica-
tion), 30 F.3d at 147–48; In re Meese, 907 F.2d at 1204, and
we will impose the same reduction here. Likewise, we will
not allow reimbursement for $5,970.00 that has been submit-
ted for ‘‘Law Clerks,’’ as no information of any kind has been
supplied as to the nature of the tasks performed by these
clerks.
Expenses. Marceca seeks reimbursement for expenses in
the amount of $9,288.44. This figure includes $5,437.08 for
‘‘Copies’’ or ‘‘Photocopying’’ or ‘‘Outside Photocopying’’ that
are not otherwise explained. In the past we have made
deductions for comparable fees because of a lack of support-
ing documentation, and we will do so here, reducing the
amount by $2,500. See In re North (Gregg Fee Application),
57 F.3d 1115, 1117 (D.C. Cir., Spec. Div., 1995) (per curiam);
In Re Meese, 907 F.2d at 1204. Similarly, Marceca claims a
total of $675.40 for computer research, which also lacks any
supporting documentation, and we therefore will reduce this
amount by $300.00. Id. Finally, we will make deductions of
$161.19 for ‘‘Lunch Expenses,’’ see In re North (Haskell Fee
Application), 74 F.3d 277, 282 (D.C. Cir., Spec. Div., 1996)
(per curiam), of $38.40 for ‘‘Travel Expenses,’’ and of $7.00 for
‘‘Local Transportation’’ that are not otherwise explained, see
In re North (Shultz Fee Application), 8 F.3d 847, 852–53
(D.C. Cir., Spec. Div., 1993) (per curiam).
Conclusion
In light of the foregoing discussion, Anthony B. Marceca
shall be reimbursed for attorneys’ fees and expenses in the
amount of $82,033.50. The final calculations are set out in the
appendix.
12
APPENDIX
Total attorneys’ fees requested: $179,680.00
Reduction for congressional investigation,
civil case, defensive monitoring,
and media-related activities: w $ 89,541.50
$ 90,138.50
Reduction for unexplained law clerks’ time: w $ 5,970.00
$ 84,168.50
Ten percent reduction for insufficient
billing descriptions: w$ 8,416.85
Total award for attorneys’ fees: $ 75,751.65
Total expenses requested: $ 9,288.44
Reductions from opinion: w $ 3,006.59
Total award for expenses: $ 6,281.85
TOTAL AWARD: $ 82,033.50