North, In re
| Decision Date | 08 August 1997 |
| Docket Number | No. 86-6,86-6 |
| Citation | 120 F.3d 293 |
| Parties | In re Oliver L. NORTH, et al. (Dwyer Fee Application). Division . Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, as Amended |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Before: SENTELLE, Presiding Judge, BUTZNER and FAY, 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 William Dwyer 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. (1988 and Supp. V 1993), 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 United States reimburse William Dwyer for attorneys' fees and expenses he incurred during the investigation by Independent Counsel Lawrence E. Walsh in the amount of $8400 this 8th day of August, 1997.
Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, as Amended.
Opinion for the Special Court filed PER CURIAM.
ON APPLICATION FOR ATTORNEYS' FEES
William Dwyer ("Dwyer") petitions this Court under section 593(f) of the Ethics in Government Act of 1978, as amended, 28 U.S.C. § 591 et seq. (1988 and Supp. V 1993), for reimbursement of attorneys' fees he incurred during and as a result of the Iran/Contra investigation conducted by Independent Counsel ("IC") Lawrence E. Walsh. After considering Dwyer's petition we find that he is entitled to an award of attorneys' fees in the amount of $8400.
During the time that the events which constituted the Iran/Contra matter 1 took place, Lieutenant Colonel Oliver North sought help from the Drug Enforcement Agency ("DEA") in rescuing hostages held by a terrorist group in Lebanon. For use in this operation North was given considerable sums of money by H. Ross Perot, the Central Intelligence Agency, the DEA, and others. The funds were to be used partly to buy information regarding the hostages from informants in Lebanon. To this end, North recruited the services of William Dwyer, a DEA agent. IC Walsh, during his investigation of Iran/Contra, investigated the possible misuse of the Lebanon funds by North and Dwyer.
After the Independent Counsel's investigation, Dwyer petitioned the court for reimbursement of attorneys' fees incurred during this time period. In his original petition he prayed for reimbursement in the amount of $65,577.48; in his "Reply to Justice Department's Comment" he requested$53,548.23; finally, in the "Response of Petitioner to the Former Independent Counsel's Evaluation" ("Response") he asked to "be awarded fifty percent of the hourly fees ... and fifty percent of the out-of-pocket charges" incurred.
Section 593(f)(1) of 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). To obtain an attorneys' fees award under the statute a petitioner must show that 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."
In re Mullins (Tamposi Fee Application), 84 F.3d 1439, 1441 (D.C.Cir. Spec. Div.1996) (per curiam). We will address each of these requirements in turn.
We have previously defined the term "subject" as a person whose conduct is within the scope of the independent counsel's investigation such 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); see also Shultz, 8 F.3d at 850. Although no criminal charges were sought against Dwyer, IC Walsh investigated him for possible misuse of funds and therefore, according to IC Walsh, Dwyer "could reasonably have believed he was a subject of my investigation." Report of Independent Counsel Lawrence E. Walsh Regarding Fee Application of William Dwyer at 2-3, In Re: Oliver L. North, et al. (March 10, 1997) (Div. No. 86-6) (hereinafter "Report of IC").
Additionally, in Shultz we held that under any definition of the term, the criterion for "subject" status is squarely met when the independent counsel tells a party that he is in fact a subject. 8 F.3d at 850. In his affidavit to the Court, Dwyer's attorney states that an attorney from IC Walsh's office informed him that "Dwyer, though not a target of the investigation, was nonetheless one of the subjects and could face possible criminal charges." Schippers' Affidavit at 4. Accordingly, Dwyer qualifies as a subject under the Act.
Dwyer seeks fees for representation from May 1987 to February 1988. The court has identified the maximum time for which fees can be sought as spanning from the time an IC begins an investigation of an individual to the deadline for filing comments to the final report. See, e.g., In re Olson, 884 F.2d 1415, 1420-22 (D.C. Cir Spec. Div.1989) (per curiam). The relevant period in this case is from December 19, 1986, when IC Walsh was appointed, to the December 3, 1993 deadline for filing comments to the Final Report. Therefore, the fees were incurred "during" the investigation.
The Independent Counsel statute requires that to be reimbursable, attorneys' fees must be such as "would not have been incurred but for the requirements of [the Ethics in Government Act]." 28 U.S.C. § 593(f)(1) (emphasis added). Therefore, "[a]ll requests for attorneys' fees under the Act must satisfy the 'but for' requirement of" the Act. In re Sealed Case, 890 F.2d 451, 452 (D.C.Cir. Spec. Div.1989) (per curiam). The purpose of awarding only fees that would not have been incurred "but for" the Act is to ensure that "officials [and here derivative 'subjects'] who are investigated by independent counsels will be subject only to paying those attorneys' fees that would normally be paid by private citizens being investigated for the same offense by" federal executive officials such as the United States Attorney. Id. at 452-53 ().
The Iran/Contra investigation arose as a result of IC Walsh's decision to treat as a criminal conspiracy efforts to circumvent the Boland Amendments, which prohibited the U.S. Government from supporting the Contras in Nicaragua. As we have previously noted, Dutton, 11 F.3d at 1080.
Dwyer's activities involving North and the Lebanon funds were within the scope of IC Walsh's investigation of alleged attempts to circumvent the Boland Amendments by supplying military aid to the Contras. IC Walsh has stated that Report of IC at 3. Therefore, Dwyer would not have been investigated, and attorneys' fees would not have been incurred, "but for" the appointment of the independent counsel. 2
We must determine whether the time expended by Dwyer's attorney on Dwyer's representation was reasonable, and whether the attorney charged a reasonable rate. In re Meese, 907 F.2d 1192, 1201 (D.C.Cir. Spec. Div.1990) (per curiam).
As to the reasonableness of time expended, in support of the petition Dwyer's attorney has submitted two separate billing documents: the first is a set of monthly statements from June, 1987 to March, 1988; the second is a document entitled "Revised Accounting for Services Rendered and Costs Incurred," covering the same time period. For the reasons stated below neither of these documents is sufficient for the awarding of fees, and we have to look elsewhere for verification of the reasonableness of time billed.
The monthly statements submitted by Dwyer's attorney are woefully inadequate: each one contains the same paragraph that provides only an exceedingly general description of the legal work performed and which mentions only services rendered in connection with the congressional investigation of the Iran initiative; there is no mention whatsoever of the Independent Counsel's investigation. These monthly statements are thus deficient for two reasons. First, we have held previously that fees incurred in connection with congressional proceedings are not reimbursable under the Act. In re North (Gadd Fee Application), 12 F.3d 252, 256-57 (D.C.Cir. Spec. Div.1994) (per curiam); In re North (Gardner Fee Application), 30 F.3d 143, 147 (D.C.Cir. Spec. Div.1994) (per curiam). Second, as we have also held previously, adequate documentation of legal work performed is a necessary ingredient for the reimbursement of attorneys' fees, In re Meese, 907 F.2d at 1204, and inadequate documentation "makes it...
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