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In re Madison Guaranty Savings & Loan

May 11, 2004

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.

Per curiam.

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 petition is in part well taken, it is hereby

ORDERED, ADJUDGED, and DECREED that the United States reimburse Anthony B. Marceca for attorneys' fees and expenses he incurred during the investigation by the Independent Counsel in the amount of $82,033.50.

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. Because 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.

Background

In early 1995, during a congressional investigation into the firings of White House Travel Office employees, it was discovered that the Clinton administration had requested confidential 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 included 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 subpoenas 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 investigation ... would not be appropriate in this situation because of the political conflict of interest." See Application for 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 capable of producing such an outdated list. Consequently, suspicions arose that the Clinton administration deliberately requested 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 evaluations of the petition. The court expresses its appreciation to the IC and the Attorney General ...


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