260 F3d 629 In Re: Madison Guaranty Savings & Loan Association

260 F.3d 629 (D.C. Cir. 2001)

IN RE: MADISON GUARANTY SAVINGS & LOAN ASSOCIATION (INDEPENDENT COUNSEL'S MOTION FOR TERMINATION ORDER)

No. 94-1

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

August 21, 2001.

Division for the Purpose of Appointing Independent Counsels, Ethics in Government Act of 1978, As Amended.

Before: SENTELLE, Presiding, FAY and CUDAHY, Senior Circuit Judges.

ORDER DEFINING GURTHER DUTIES OF THE INDEPENDENT COUNSEL

PER CURIAM:


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On August 3, 2001, Independent Counsel Robert W. Ray filed with this Court a "Motion for Order of Termination of Investigation of the Office of Independent Counsel Robert W. Ray"; and,

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Upon due consideration, it appearing to the Court that the Independent Counsel has represented to the Court that all investigations were concluded as of January 19, 2001; and, that in compliance with 28 U.S.C. 594(h)(1)(B), the Independent Counsel has filed with the Special Division the final reports in all of its investigative mandates, which set forth fully and completely the work of the office; and, for the reasons more fully set forth in the opinion filed contemporaneously herewith, it is

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(1) ORDERED that the Independent Counsel, effective September 30, 2001, and subject to further order of this Court, continue his office only to the extent necessary or appropriate to fulfill his duties relating to his Final Report, specifically:

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(a) the final submission of such Report inclusive of the statutory appendix consisting of the comments authorized by this Court in accordance with the provisions of 28 U.S.C. 594(h)(2); (b) the written evaluations of applications for attorneys' fees in accordance with 28 U.S.C. 593(f)(2); (c) the archiving and transfer of reports pursuant to 28 U.S.C. 594(k)(1); (d) the publication of final reports under 28 U.S.C. 594(h)(3), as may be ordered by the Court; and, (e) the completion of any remaining audits in 28 U.S.C. 596(c)(1).

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(2) To the extent necessary or appropriate to the purposes of this order, the Independent Counsel shall perform any noninvestigative and nonprosecutorial tasks remaining of his statutory duties as required to conclude the functions of his office as set forth in the decretal paragraph (1). Per Curiam

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Opinion for the Special Division filed PER CURIAM.

PER CURIAM:

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As we noted in the Per Curiam order accompanying this opinion, the Independent Counsel has come before this Court moving for an order pursuant to 28 U.S.C. 596(b)(1) "terminating the investigation of the office of Independent Counsel Robert W. Ray" (the "Office"). Literally, that section of the Ethics in Government Act empowers the Court to effect the "termination of office" rather than the termination of investigation. However, we have in the past construed the statute as granting the lesser included authorization to terminate the investigative functions of the office while reiterating the noninvestigative statutory duties of the office, such as those set forth in our accompanying order. See generally, In re North (Walsh Show Cause Order), 304 U.S. App. D.C. 56, 10 F.3d 831 (D.C. Cir., Spec. Div. 1993) (per curiam). In the present case, as in In re North, it appears to the Court that an order so delimiting the continuing authority of the Office is appropriate.


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The Independent Counsel has represented to the Court that he completed all of his investigations as of January 19, 2001. We have no reason to doubt this assertion, and it is not apparent that any other party would have standing to challenge that assertion. Insofar as other parties have interests in the question, these would seem appropriately addressed in the comments to the report authorized by this Court in accordance with the provisions of 28 U.S.C. 594(h)(2). Independent Counsel Ray, like the Independent Counsel in In re North, does not seek to absolve himself of the duties contemplated under the statute of responding to attorney fee applications, archiving, publishing, and conducting such other supportive noninvestigative functions as may remain his duty. Neither do we contemplate absolving him of those duties. Therefore, by the order of even date, we have granted the termination of investigation sought by the Independent Counsel, but do not terminate his office, as he remains empowered and obligated under the statute to perform the other noninvestigative duties which neither the Court nor the Department of Justice is equipped to perform were we to terminate his office.

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SO ORDERED.