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.

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 Dan R.

Lasater 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 petition is not well

taken, it is hereby
2

ORDERED, ADJUDGED, and DECREED that the petition 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 reimbursement 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 provision, 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 independent counsel to investigate allegations of questionable business 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 petitioner 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 reauthorized 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 documents 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 forwarded 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 submitting these evaluations, to which we have given due consideration 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 application are whether Lasater was a subject of the IC’s investigation; 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 independent counsel’s investigation in the sense that ‘‘the Independent 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 Lasater 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 reasonable 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 employees 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 reimbursement 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 corporate entities.

During the investigation. Lasater states that he is seeking 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 subpoenaed 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, however, Lasater incurred all of his fees in defense of the investigation conducted by regulatory independent counsel Fiske.

But for. Lasater claims that he is eligible for reimbursement 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 proposition 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 investigated by DOJ is demonstrably false.’’

We agree. In the recent past we have had several occasions 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 Madison 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. Similarly, 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 Professional Support Services, Inc.’’ So although there are no billing

records, Lasater ‘‘respectfully requests that this Court consider 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 petition 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.’’ Regarding 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 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. 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 attorneys’ fees incurred pursuant to an independent counsel investigation, 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.