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In re Madison Guaranty Savings & Loan

July 20, 2004

IN RE: MADISON GUARANTY SAVINGS & LOAN (LIVINGSTONE 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 D. Craig Livingstone 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 D. Craig Livingstone for attorneys' fees and expenses he incurred during the investigation by the Independent Counsel in the amount of $33,921.94.

ON APPLICATION FOR ATTORNEYS' FEES

Opinion for the Special Court filed PER CURIAM.

PER CURIAM:

D. Craig Livingstone ("Livingstone") 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 $235,299.60 that he claims were incurred during and as a result of the investigation conducted by the Independent Counsel. Because we find that Livingstone 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 $33,921.94.

I. Background

In early 1994, Robert B. Fiske, Jr. ("Fiske") was appointed regulatory independent counsel by the Attorney General to investigate, inter alia, President William Jefferson Clinton's and Hillary Rodham Clinton's involvement in matters concerning the Whitewater Development Company.*fn1 Previously, in July of 1993, Deputy White House Counsel Vincent W. Foster ("Foster") was found dead of a gun shot wound in a secluded park in suburban Washington, D.C. Special counsel Fiske, upon his appointment, opened an investigation into the circumstances surrounding Foster's death. One facet of this investigation concerned whether any Whitewater-related documents were removed from Foster's White House office soon after his death. In particular, it was alleged that D. Craig Livingstone, the fee petitioner here, who was Director of the Office of Personnel Security ("OPS") at the White House from 1993 to 1996, and in that capacity reported to the White House Counsel's Office, had taken documents from Foster's office in the early morning hours of the day following Foster's death.

In August of 1994, soon after reauthorization of the Act, a statutory independent counsel (hereinafter "IC" or "OIC") was appointed to assume the investigation being conducted by regulatory counsel Fiske. Before termination of his office, Fiske issued a report stating his conclusions on the circumstances surrounding Foster's death, but transferred to the IC the investigation of the allegations concerning the removal of documents from Foster's White House office. Because of these allegations and his involvement in them, Livingstone became a subject of the OIC's investigation.

The OIC also investigated what became known as the "FBI Files" matter. 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. "Access" to the White House was provided as the reason for the request. Many of these persons, however, did not work for the Clinton administration; instead, they were staff members from both President Ronald W. Reagan's and President George H.W. Bush's administrations who would have no need for access to the White House grounds.

After becoming aware of the request for the FBI files, the OIC, which previously had its jurisdiction expanded to include the Travel Office firings, issued subpoenas to appear before the grand jury to two White House employees involved in the requests. One of these employees was Anthony Marceca ("Marceca"), who had apparently requested the reports. He was an employee of OPS who had been hired by, and then reported to, Livingstone, and whose duty it was to assemble background information on persons in need of White House access.

Following these grand jury appearances, the OIC informed the Attorney General ("AG") that it would not be conducting an investigation into the matter, as it was not within the OIC's current jurisdiction. The AG immediately commenced a preliminary investigation pursuant to the Act to determine whether further investigation was warranted. Two days later the AG sought and obtained an expansion of the OIC's jurisdiction to include the FBI files matter. Livingstone was subsequently subpoenaed by the OIC to appear before the grand jury.

After conducting extensive investigations, the IC determined that no charges would be brought against Livingstone for either the Foster documents matter or the FBI files matter. Livingstone now petitions the court for reimbursement of attorneys' fees that he allegedly incurred in defense of the IC's investigations, in the amount of $235,299.60. As directed by section 593(f)(2) of the Act, we forwarded copies of Livingstone's fee petition to the Attorney General and the IC and requested written evaluations of the petition. The court expresses its appreciation to the ...


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