author: SILBERMAN, Circuit Judge:

text:
    Eric W. FORMAN, Appellee/Cross-Appellant, v. KOREAN AIR LINES CO., LTD., Appellant/Cross-Appellee.
    Nos. 95-5230, 95-5231.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 12, 1996.
    Decided May 21, 1996.
    Rehearing and Suggestion for Rehearing En Bane Denied July 5, 1996.

      Andrew J. Harakas, White Plains, N.Y., argued the cause, and filed the briefs, for appellant/cross-appellee Korean Air Lines Co., Ltd. George N. Tompkins, Jr., White Plains, N.Y., entered an appearance.
    Juanita M. Madole, Irvine, CA, argued the cause, and filed the briefs, for appellee/cross-appellant Eric W. Forman. George E. Farrell, Washington, DC, entered an appearance.
    Before SILBERMAN, WILLIAMS, and ROGERS, Circuit Judges.

       Circuit Judge Henderson did not participate in the order on Rehearing In Banc.

   Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Korean Air Lines and Eric Forman both appeal aspects of the judgment entered by the district court after trial on damages arising out of the downing of KAL Flight KE007. We reject KAL’s claims that the evidence did not support the jury’s award for Evelyn Forman’s pre-death pain and suffering and that the district court erred in awarding prejudgment interest at the prime rate. Forman concedes that the Supreme Court’s decision in Zicherman v. Korean Air Lines, — U.S. -, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996), precludes the recovery of loss of society damages in a ease brought under the Warsaw Convention, so we reverse the judgment below as to those damages. And, we reverse the district court’s determination that Forman offered insufficient evidence as to Evelyn’s future earnings and contributions to him, and remand with instructions to reinstate the jury’s verdict as to those damages.

I.

Evelyn Forman was returning home to the Philippines, from where she had moved to New York seven years earlier, on KAL Flight 007, which was shot down by a Soviet fighter plane. All 269 persons on board were killed. Evelyn’s husband, Eric, sued Korean Air Lines seeking damages for Evelyn’s pre-death pain and suffering, for his own loss of her financial contributions and household services, and for the grief, mental anguish, and loss of society he suffered along with other members of Evelyn’s family. The case was consolidated with all of the other federal cases arising out of the disaster for a single trial on liability in the United States District Court for the District of Columbia. A jury found against Korean Air Lines determining that the shoot-down resulted from KAL’s “willful misconduct” so the Warsaw Convention’s limitations on carrier liability were inapplicable. See In re Korean Air Lines Disaster of September 1, 1983, 932 F.2d 1475, 1478-79 (D.C.Cir.), cert. denied sub nom. Dooley v. Korean Air Lines, 502 U.S. 994, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991).

At the subsequent damages trial in this case, both sides presented evidence as to whether passengers survived the initial impact of the missile attack and were, thus, subject to pain and suffering before the plane crashed into the Sea of Japan. For-man offered evidence of the grief suffered by Evelyn’s survivors, and also put on expert testimony estimating the amount of future financial contributions he lost due to his wife’s death. The jury awarded Eric Forman and Evelyn’s other family members damages under each theory put forward at trial for a total of $1,277,300. Prejudgment interest, calculated at the prime rate, increased the judgment to $2,151,050. In response to post-trial motions by Korean Air Lines, the district court entered judgment as a matter of law striking the jury awards for grief and mental anguish (as nonrecoverable under the Warsaw Convention) and loss of Evelyn’s financial contributions (as resting on insufficient evidence). The district court rejected KAL’s challenges to the awards for pre-death pain and suffering and for Evelyn’s family’s loss of society. Both parties appeal portions of the district court’s decision.

II.

Loss of Society/Mental Grief

KAL appeals the district court’s entry of judgment granting Evelyn Forman’s survivors $290,000 for “loss of care, comfort, society, companionship, love and affection.” Forman concedes that recovery of those damages is foreclosed by the Supreme Court’s recent decision in Zicherman, which held that the limitation on recovery to pecuniary damages in the Death on the High Seas Act, 46 U.S.C.App. §§ 761-768 (1975) (DOHSA), obtained in a Warsaw Convention case arising out of an air crash on the high seas. Accordingly, we reverse the district court’s entry of judgment on this claim. Forman did not challenge the district court’s reversal of the jury’s award of $195,000 for the mental anguish and grief of Evelyn’s survivors until his reply brief. Forman asserted then that his first reading of Zicherman — decided some 10 days before his initial brief was due — had indicated that these damages, like loss of society damages, were no longer available under the Warsaw Convention. Further study, however, changed his mind. Ordinarily, we will not entertain arguments or claims raised for the first time in a reply brief. See, e.g., LaRouche v. FEC, 28 F.3d 137, 140 (D.C.Cir.1994); McBride v. Merrell Dow Pharmaceuticals, Inc., 800 F.2d 1208, 1211 (D.C.Cir.1986) (“Considering an argument advanced for the first time in a reply brief ... is not only unfair to an appel-lee but also entails the risk of an improvident or ill-advised opinion on the legal issues tendered.”) (citations omitted). That Forman had 10 days to read the Zicherman opinion before he filed his opening brief hardly creates an exceptional circumstance allowing him to raise a new ground for appeal in his reply brief. We will thus not disturb the district court’s ruling that damages for the survivors’ mental grief are not recoverable.

Pre-death Pain and Suffering

The jury awarded the estate of Evelyn Forman $120,000 for pain and suffering she endured between the time the missile struck the airplane and the time the airplane crashed. Korean Air Lines contends that Forman failed to proffer sufficient evidence to support this award and also that these non-pecuniary damages, as it explains for the first time in its reply brief, are barred by the DOHSA as interpreted in Zicherman. Korean Air Lines argues that it should be permitted to raise this argument because the briefing schedule (Forman brought a cross-appeal) permitted Forman in his reply brief to respond to KAL’s reply brief argument. Nevertheless, since the exchange took place in reply briefs, we were denied the opportunity to receive the full briefing that the ticklish question KAL raises deserves. And that Zicherman was decided after KAL filed its opening brief does not justify its tardiness. The argument that'pre-death pain and suffering damages are not available if DOHSA applies has been raised numerous times before Zicherman. Compare, e.g., Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 893 (5th Cir.1984) (survival action permissible in DOHSA action), with In re Air Disaster Near Honolulu, Hawaii, 792 F.Supp. 1541, 1545-46 (N.D.Cal.1990) (DOHSA preempts survival action). Zicherman itself could not have surprised KAL: the counsel who argued this case before us argued Zicherman before the Supreme Court. Accordingly, we do not, as the Sixth Circuit recently has Bickel v. Korean Air Lines, 83 F.3d 127, 131-32 (6th Cir.1996), decide whether pre-death pain and suffering damages may not be recovered after Zicherman.

As to the sufficiency of the evidence that Evelyn Forman survived the initial impact of the missile strike and was conscious for some or all of the time it took the plane to descend into the Sea of Japan, we agree with the Second Circuit, which has twice upheld awards for claims from the same incident. See Hollie v. Korean Air Lines, 60 F.3d 90, 92-93 (2d Cir.1995), judgment vacated on other grounds and case remanded, — U.S. -, 116 S.Ct. 808, 133 L.Ed.2d 754 (1996); Zicherman v. Korean Air Lines, 43 F.3d 18, 23 (2d Cir.1994), rev’d in part on other grounds, — U.S.-, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996).

The key factual dispute turns on whether the passengers were immediately rendered unconscious. Forman offered evidence that some occupants of the plane — the flight crew — survived the missile impact for at least 104 seconds. The flight data recorder continued to function for that amount of time and it captured the flight crew’s post-impact actions and utterances. Forman’s experts testified that the passengers could have remained conscious during the decompression that followed the puncturing of the fuselage, and that they would have had sufficient time to don their oxygen masks, which, in any event, would have been less and less necessary as the plane descended. The experts testified that the descent would have taken between nine and twelve minutes and that the passengers would have suffered physical pain due to the decompression. And, according to stipulation of the parties, Evelyn’s seat was a full 32 rows from the tail of the plane where the shrapnel appears to have hit. This body of evidence permits the inference that Evelyn Forman survived the missile impact, remained conscious despite the airplane’s decompression, and experienced decompression-related pain.

KAL’s evidence to the contrary was impressive. Its experts asserted that the plane disintegrated after 104 seconds and that, in any event, the airplane’s cabin would have almost immediately equalized with the rari-fied ambient atmosphere, rendering all passengers unconscious — and thus anesthetized to pain — in a matter of seconds. We do not think, however, that the trial left the jury with but one conclusion to draw, Parker v. District of Columbia, 850 F.2d 708, 711 (D.C.Cir.1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1339, 103 L.Ed.2d 809 (1989), nor do we think that the pain and suffering award could only have resulted from jury speculation.

Loss of Financial Contributions

Although the jury awarded Forman a total of $392,300 for the loss of financial contributions from his wife, the district court granted judgment in favor of KAL. Forman relied on an expert who calculated Evelyn Forman’s future earnings ($19,804 in 1983) based on the average earnings of a college-educated female of her age. The district judge thought that testimony was “speculation and conjecture” because Evelyn For-man’s actual earnings in the United States never exceeded the $5,253 she made in 1983. The district court was also troubled by the lack of evidence as to what portion of Evelyn’s future earnings would benefit Eric.

This is a close issue. The district judge would have been on firm ground but for the undisputed testimony of her husband that Evelyn had only recently received a green card and that prior to that point she had been inhibited from seeking a high-paying job. To be sure, she did not earn a great deal even in the months between getting her green card and taking the ill-fated flight. But her husband testified that she had not actively sought other employment then, knowing that she was soon to travel back to the Philippines for a two-week visit. Although it may seem farfetched, the jury could have credited that testimony. We note that the tax returns indicating Evelyn’s pri- or, meager earnings were presented to the jury and used by KAL in cross-examining plaintiffs expert and in assailing his conclusions during closing argument. The jury was thus presented with, and legitimately—if barely legitimately—rejected, evidence suggesting that plaintiffs expert’s estimates were unreasonable.

Since the expert concluded, and the jury reasonably could have agreed, that Evelyn’s earnings history was of limited predictive value, this case is aldn to those in which courts have allowed loss of future earnings damages for decedents with little or no earnings history. See, e.g., Reilly v. United States, 863 F.2d 149, 166-167 (1st Cir.1988); see also In re Air Crash Near Cerritos, California, 982 F.2d 1271, 1278-79 (9th Cir.1992); Caron v. United States, 548 F.2d 366, 370 (1st Cir.1976). Nor do we think that Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 567-70 (D.C.Cir.1993), on which the district court and Korean Air Lines rely, requires a different result. In Joy, we reversed a jury verdict based on expert testimony painting an improbably rosy picture of the decedent’s future earning capacity based on assumptions about decedent’s possible career moves that were “wholly speculative” in light of his work history. Since Evelyn’s pre-green card work history could be legitimately disregarded in predicting her future earnings, we think that Forman’s expert’s reliance on data concerning the average woman of Evelyn’s age and education was permissible.

Finally, we are satisfied that sufficient evidence supported the proposition that the Formans’ was a share-and-share-alike household such that the jury could reasonably find that whatever portion of Evelyn’s earnings remained after taxes and after her personal consumption would redound to Eric’s benefit.

Prejudgment Interest

Korean Air Lines objects to the district court’s award of prejudgment interest at the prime rate for each year between the accident and the entry of judgment. KAL contends that the purpose of prejudgment interest is to compensate—but not overcompensate—the plaintiff. Since the prime rate—the rate charged by banks on short-term, unsecured loans to their most creditworthy customers—not only consists of the financial community’s guess as to future inflation rates, but also includes a profit component and an allowance for the risk of default, it is argued to be too high, resulting in a windfall for Forman. KAL prefers the 52-week Treasury Bill rate, which is said to represent the financial community’s guess as to the appropriate return on a risk-free loan.

KAL concedes that the decision on how to compute prejudgment interest is discretionary with the district court. We quite agree with many of our sister circuits that the use of the prime rate for determining prejudgment interest is well within the district court’s discretion. See, e.g., Cement Division, Nat’l Gypsum Co. v. City of Milwaukee, 31 F.3d 581, 587 (7th Cir.1994), aff'd, — U.S. — , 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995); Mentor Ins. Co. v. Brannkasse, 996 F.2d 506, 520 (2d Cir.1993); Uniroyal, Inc. v. Rudkin-Wiley Corp., 939 F.2d 1540, 1545 (Fed.Cir.1991); Alberti v. Klevenhagen, 896 F.2d 927, 938, vacated in part, 903 F.2d 352 (5th Cir.1990) (holding a district court’s failure to use the prime rate to be in error). Indeed, we think the Seventh Circuit is correct—that the prime rate is not merely as appropriate as the Treasury Bill rate, but more appropriate:

Interest at what rate? Surely the market rate. That is what the victim must pay— either explicitly if it borrows money or implicitly if it finances things out of cash on hand — and the rate the wrongdoer has available to it.... [A] court should use the ‘prime rate’ — that is, the rate banks charge for short-term unsecured loans to creditworthy customers. This rate may miss the mark for any particular party, but it is a market-based estimate.

In the Matter of Oil Spill by the Amoco Cadiz Off the Coast of France, 954 F.2d 1279, 1382 (7th Cir.1992).

Accordingly, we affirm the entry of judgment for decedent’s pre-death pain and suffering, and we affirm the district court’s calculation of prejudgment interest at the prime rate. We reverse the judgment of the district court awarding damages for loss of society, and striking the award for loss of financial contributions as too speculative and remand for entry of the appropriate orders.

      . Forman’s airplane expert testified that the holes in the fuselage would have caused the cabin's atmosphere, which was initially equivalent to an altitude of 4,800 feet, rapidly to approach the ambient altitude of between 35,000 and 38,000 feet. Since the airplane’s ventilation system was continuously forcing air into the cabin, the expert stated that the interior atmosphere would not have equalized with the ambient altitude, but would have reached only the equivalent of roughly 22,000 feet. Forman’s physiologist testified that at that altitude, the passengers would have been conscious for five to ten minutes even without the oxygen masks.

      . That does not mean that we will never disturb a judgment based on expert testimony. See Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 569 (D.C.Cir.1993) ("[I]n view of the patent flaws in [plaintiffs expert's] testimony, we must resist the temptation to answer objections to receipt of expert testimony with the shorthand remark that the jury will give it ‘the weight it deserves.' ”) (quotations omitted). Where the conclusions have an adequate foundation in fact, concerns we might have as to their probative value are somewhat allayed where evidence giving rise to these concents enters the jury’s ken.

      . Indeed, the use, where appropriate, of statistics based on averages derived from large samples may limit jury speculation more than imaginative prognostication founded on “facts” specific to a decedent.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    DEMOCRATIC CENTRAL COMMITTEE OF the DISTRICT OF COLUMBIA, et al., Petitioners, v. The WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION, Respondent, D.C. Transit System, Inc., Intervenor.
    Nos. 21865, 24398, 24415 and 24428.
    United States Court of Appeals, District of Columbia Circuit.
    May 31, 1996.

      Leonard N. Bebchick, Washington, DC, for Washington Metropolitan Area Riders’ Fund.
    Landon G. Dowdey, for Democratic Central Committee of the District of Columbia, et al.
    Lutz Alexander Prager, Assistant Deputy Corporation Counsel, for the District of Columbia.
    Bruce P. Heppen and Karen S. Karas, Assistant General Counsel, for intervenor Washington Metropolitan Area Transit Authority.
    Before: BUCKLEY, RANDOLPH and TATEL, Circuit Judges.
   PER CURIAM:

On November 30, 1995, this court issued an order directing NationsBank Trust Company, N.A., the Bank of New York’s predecessor as trustee of the Riders’ Fund, to solicit recommendations regarding the disposition of the Riders’ Fund and the Bebchick Fund (collectively, the “restitutionary funds”). After reviewing the recommendations, the court has decided to consolidate the Riders’ Fund and the Bebchick Fund pursuant to Article Two of the Riders’ Fund Trust Agreement, see Democratic Cent. Comm. of the District of Columbia v. Washington Metro. Area Transit Comm’n, 41 F.3d 757, 758-59 (D.C.Cir.1994), and to transfer all the assets of the restitutionary funds, both liquidated and unliquidated, to the Washington Metropolitan Area Transit Authority (“WMATA”), subject to the following two conditions: first, the restitutionary funds must not be the basis for any reduction in the contributions due from the jurisdictions that fund WMATA; and second, with two exceptions noted below, the funds must be spent exclusively to purchase new buses in accordance with WMATA’s January 19, 1996 letter to Leonard Bebchick, Esquire.

I. Background

A. Regulatory Authority Over Bus Service

In 1960, Congress gave its consent to Virginia, Maryland and the District of Columbia (the “signatories”) to enter into the Washington Metropolitan Area Transit Regulation Compact (the “Compact”). Pub.L.No. 86-794, tit. I, 74 Stat. 1031,1031-35 (1960) (codified as amended at D.C. Code Ann. § 1-2411 (1992)). The Compact established the Washington Metropolitan Area Transit Commission (the “Commission”) and gave it regulatory authority over, inter alia, privately owned bus companies providing passenger transportation services in the metropolitan area. Id.

In 1966, Congress and the signatories added a third title to the Compact, establishing WMATA but expressly prohibiting it from performing, directly or through a contractor, transit service by bus. Washington Metropolitan Area Transit Authority Compact (“Title III”), Pub.L.No. 89-774, tit. Ill, art. XIII, 80' Stat.. 1324,1344 (1966)'(codified as amended at D.C. Code Ann. § 1-2431(1992)). Congress lifted this prohibition in 1972 when it amended Title III. National Capital Area Transit Act of 1972 (the “Act”), Pub.L.No. 92-517, 86 Stat. 999 (1972). The Act directed WMATA to initiate negotiations "with, among others, D.C. Transit System, Inc. (“D.C. Transit”) for the acquisition of its capital stock or its transit facilities used in connection with bus service in the Washington metropolitan area. Pub.L.No. 92-517, § 102(a), 90 Stat. -999, 1001. Since the acquisition, of the bus companies, WMATA has been exclusively responsible for the provision of transportation services by bus in the metropolitan area.

B. The Restitutionary Funds

1. The Bebchick Fund

The history of the Bebchick Fund begins in 1968 when this court set aside three Commission orders increasing D.C. Transit’s fares and ordered the company to make restitution to the bus riders in the Washington metropolitan area for excessive fares collected. See Williams v. Washington Metro. Area Transit Comm’n, 415 F.2d 922, 938-48 (D.C.Cir.1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 860, 21 L.Ed.2d 773 (1969); see also Bebchick v. Washington Metro. Area Transit Comm’n, 485 F.2d 858, 860-61 (D.C.Cir.1973). In 1974, representatives of the bus riders sought to collect the restitution due them from condemnation proceeds belonging to D.C. Transit then under the control of the United States District Court for the District of Columbia. In an order dated December 19,1974, the district court distributed to D.C. Transit all but $1,461,756 of the condemnation proceeds, retaining that amount in an account until all appeals of the restitution award were settled.

This court assumed custody of the account containing the withheld condemnation proceeds, known as the “Bebchick Fund,” by order dated December 2, 1975. In 1979, all appeals of the restitution award became moot when D.C. Transit agreed thát the bus riders were entitled to the Bebchick Fund as restitution for excessive fares it had charged them. By 1986, all issues regarding the restitution owed the bus riders in connection with the excessive fares in this case had been settled. See Bebchick v. Washington Metro. Area Transit Comm’n, 805 F.2d 396, 399-401 (D.C.Cir.1986). As of April 30, 1996, the Bebchick Fund contained $6,560,588.17. This court has never relinquished custody of the Bebchick Fund, nor has it ever appointed a trustee for the fund.

2. The Riders’ Fund

The Riders’ Fund was established pursuant to a compromise agreement, approved by this court’s order of February 26, 1990, wherein D.C. Transit agreed to pay $9,200,-000 in restitution into the Riders’ Fund for the benefit of bus riders. See Democratic Cent. Comm. of the Dist. of Columbia v. Washington Metro. Area Transit Comm’n, 3 F.3d 1568, 1569 (D.C.Cir.1994). This court also adopted and executed a declaration of trust agreement, effective as of February 26, 1990, which, inter alia, appointed a trustee of the Riders’ Fund to make “all reasonable efforts to collect all amounts to which the Trust is or becomes entitled and to realize the fair value of the Trust Assets.” Democratic Cent. Comm. of the Dist. of Columbia, 41 F.3d at 759. On March 30, 1993, the Riders’ Fund obtained a judgment against D.C. Transit in the amount of $4,976,124.79, the balance of unpaid restitution. The Bank of New York is currently trustee of the Riders’ Fund. As of April 30, 1996, the Riders’ Fund contained $4,850,459.80. The nonliqui-dated assets of the Riders’ Fund consist of various interests in real estate and the judgment against D.C. Transit that the trustee is currently seeking to enforce.

On November 30, 1995, this court issued an order to the trustee of the Riders’ Fund “to solicit, on behalf of the Riders’ Fund and the Bebchick Fund, ... recommendations of the plaintiffs, the Washington Metropolitan Area Transit Commission [WMATA], the District of Columbia Government, and existing organizations representing users of mass transit services in the D.C. area as to the best disposition of these assets.” In response to the trustee’s solicitation, the court received sixteen recommendations.

II. DISCUSSION

Of the many recommendations submitted to the court regarding the disposition of the restitutionary funds, none suggested giving the farepayers an opportunity to prove and collect the amounts they were overcharged by D.C. Transit. Although a proof-of-elaim procedure might usually be considered the most precise and direct method of compensation, the parties, special interest groups, and individual citizens that submitted recommendations correctly recognized that using such a procedure in this case would not be feasible. More than a quarter of a century has passed since D.C. Transit collected the excessive fares; identifying, locating, and notifying all those overcharged after so much time would be very difficult, if not impossible. The prohibitive cost of notification, together with the cost of distribution, would greatly reduce, or even exceed, the total amount of the funds. Even if such an opportunity were given, it is doubtful whether any of the overcharged farepayers would avail themselves of it; many would likely consider the potential of recovering a small award not worth the considerable effort of establishing a claim arising out of numerous minor transactions that occurred 25 years ago. See Market St. Ry. v. Railroad Comm’n, 28 Cal.2d 363, 171 P.2d 875 (1946) (claims by street-car riders for fare overcharges amounted to less than two percent of fund consisting of fare overcharges). Because of the great cost and likely failure of a proof-of-claim procedure, another method of distributing the restitu-tionary funds is needed to benefit the overcharged farepayers.

In class actions, some courts have applied the equitable doctrine of cy pres to undistributed damage or settlement funds. See State v. Levi Strauss & Co., 41 Cal.3d 460, 224 Cal.Rptr. 605-611, 715 P.2d 564, 570 (1986). That doctrine permits such funds to be distributed to the “next best” class when the plaintiffs cannot be compensated individually. The object of applying the funds to the “next best” class is to parallel the intended use of the funds as nearly as possible by maximizing the number of plaintiffs compensated. See DeJarlais, supra note 1, at 740; Stewart R. Shepherd, Comment, Damage Distribution in Class Actions: The Cy Pres Remedy, 39 U. Chi L. Rev. 448, 457 (1972). In the context of class actions, the cy pres doctrine is referred to as “fluid recovery.” The “next best” class in this ease would be the current bus riders in the service region from which the excessive fares were collected. See Shepherd, supra, at 458 n. 44.

Fluid recovery offers four approaches to the distribution of unclaimed settlement or damage funds: (1) reduction of the defendant’s prices, (2) escheat to a governmental body for either specified or general purposes, (3) establishment of á “consumer trust fund,” and (4) “claimant fund sharing.” See Levi Strauss, 224 Cal.Rptr. at 612, 715 P.2d at 571. Under the price reduction approach, the price of the defendant’s product or service is lowered until the funds are completely distributed. Id. This approach is “particularly effective for remedying overcharges on items which are repeatedly purchased by the same individuals.” Id.; Bebchick v. Public Utils. Comm’n, 318 F.2d 187, 204 (D.C.Cir.1963), cert. denied, 373 U.S. 913, 83 S.Ct. 1304, 10 L.Ed.2d 414 (1969) (fund consisting of revenues from improperly granted rate increase used to keep fares down on behalf of current riders). Because of the inability to predict or control its effect on a market, the price reduction approach is most appropriate in cases where the defendant is a monopoly. See Levi Strauss, 224 Cal.Rptr. at 613, 715 P.2d at 572; Shepherd, supra, at 462. None of the recommendations submitted to the court suggested this approach for distributing the, restitutionary funds.

There are two forms of the governmental escheat approach: the specified or “earmarked” escheat and the general es-cheat. Levi Strauss, 224 Cal.Rptr. at 613, 715 P.2d at 572. Under the former, funds are disbursed to a particular governmental agency for the purpose of benefiting a group of persons who approximate the injured class; the details of the distribution are left to the agency. See id. The advantage of the earmarked escheat is that it utilizes governmental agencies to administer the fund. Id. Under the general escheat, the funds are unconditionally deposited into the treasury of a governmental body for the benefit of the public at large. Id. Because this approach provides the least focused compensation to the injured class, it is used only when a more precise method cannot be found. Id. 224 Cal.Rptr. at 613-14, 715 P.2d at 572-73; DeJarlais, supra note 1, at 753. Of the recommendations submitted to the court, five suggested that all of the restitutionary funds should escheat to WMATA; one suggested that WMATA should only get the liquid assets. None of the recommendations suggested a general escheat.

The third available approach is the establishment of a “consumer trust fund.” Levi Strauss, 224 Cal.Rptr. at 614, 715 P.2d at 573. Like the governmental escheat, the consumer trust fund can be arranged in two ways: the foundation method or the existing organization method. Under the former, the court appoints a board of trustees and deposits the funds with them. Id. The trustees then create an organization through which it finances projects beneficial to the injured consumers and those similarly situated. Id. The second method of establishing a consumer trust fund is to provide funding to an existing organization to support new and ongoing projects. DeJarlais, supra note 1, at 760. Like the earmarked escheat, the advantage of this second method is that it minimizes administrative costs by utilizing existing programs. Levi Strauss, 224 Cal.Rptr. at 614, 715 P.2d at 573; DeJarlais, supra note 1, at 760. Two recommendations suggested the creation of committees to oversee the distribution of restitutionary funds; one suggested distributing a portion of the restitutionary funds to two existing transportation public interest groups.

The final approach is “claimant fund sharing,” which allows class members who submit claims to divide the funds pro rata. Levi Strauss, 224 Cal.Rptr. at 614, 715 P.2d at 573. While this approach compensates all who submit legitimate claims, unidentified class members do not receive any compensation, even indirectly. Id. The larger the number of unidentified class members, the greater the likelihood that those submitting claims will receive a windfall. This approach is, therefore, most appropriate where a large proportion of the class members participate and submit accurate claims. Id.; DeJarlais, supra note 1, at 756. None of the recommendations suggested this approach.

In determining which of the four approaches to employ, we consider the following factors: (1) the amount of compensation to class members, (2) the proportion of the class members sharing in the recovery, (3) the extent to which nonclass members will benefit, and (4) the cost of the administration. Levi Strauss, 224 Cal.Rptr. at 614, 715 P.2d at 573; see also Shepherd, supra, at 464.

Our initial conclusion is that we should not use the general escheat or the claimant fund sharing approaches to distribute the restitutionary funds; the former because a more precise distribution approach is available, the latter because of the notification and proof difficulties discussed earlier. After evaluating the remaining approaches, we further conclude that an earmarked es-cheat to WMATA to implement its January 19, 1996 proposal is the best method of distributing the restitutionary funds to the “next best” class, the current bus riders.

Today’s decision is not the first time this court has utilized a fluid recovery distribution approach to distribute a settlement fund consisting of D.C. Transit fare overcharges. In Bebchick v. Public Utilities Commission, 318 F.2d at 204, plaintiffs challenged an order issued by the Public Utilities Commission (“PUC”) authorizing an increase in D.C. Transit’s fares. This court invalidated the order and required D.C. Transit to create a special account or fund in the amount of the overcharges. Id. at 203-04. The use and disposition of the fund were committed to PUC’s discretion, to be “exercised consistently with the purpose of benefiting [D.C.] Transit users in any rate proceedings pending or hereafter instituted.” Id. at 204. Here, as in Bebchick, settlement funds are being distributed by means of fluid recovery even though neither was a class action.

In Market Street Ry. Co. v. Railroad Commission, 171 P.2d at 881, the California Supreme Court concluded, as do we, that an earmarked escheat to a government entity responsible for transit is the most effective way to distribute a settlement fund consisting of transit fare overcharges. After upholding a rate reduction, the California Supreme Court ordered a privately owned railway company to refund over $700,000 of fare overcharges. The riders were given an opportunity to collect refunds, but less than $13,000 was collected. Id. at 877. As happened in this ease, the privately owned railway company became city-owned sometime after the excessive fares were collected. The City of San Francisco claimed it was entitled to the money because it was the successor of the railway company and because disposition of the money to it would benefit the riders. Id. at 881. The court ordered the money transferred to the City for the benefit of overcharged riders, directing that it should be used to improve property and services.

Using WMATA to distribute the funds makes sense: it has been providing bus transportation for over twenty years; its experience in serving the intended beneficiaries of the restitutionary funds is unparalleled; it is experienced in overseeing and administering large sums of money; it has an administrative infrastructure capable of beginning distribution immediately; and because virtually all of the funds will go to the benefit of the bus riders, the cost of administering the restitutionary funds will be negligible.

Distributing the restitutionary funds' through the consumer trust fund approach would not be as effective or efficient. Any trustees the court could appoint would lack WMATA’s experience in, and knowledge of, bus transportation services. In addition, administrative costs of creating a new organization, relative to WMATA’s administrative costs, would be substantial. See Shepherd, supra, at 458 n. 43. The existing public interest groups, MetroWatch and ACT, also lack WMATA’s experience and knowledge.

Distributing the restitutionary funds through the price reduction approach would effectively deliver the funds to the current bus riders. The benefit, however, would be extremely diffused and could be difficult to administer because WMATA would have to determine the precise point the funds would be exhausted.

Two recommendations argue that the interests of WMATA conflict with the interests of the bus riders and that the restitutionary funds should not, therefore, be transferred to WMATA. We find no conflict. In its recommendation, ACT neither identifies nor describes the alleged conflict; it merely surmises that one exists from three facts: (1) the funds originated in litigation in which the riders were the plaintiffs and the transit operator was defendant; (2) the riders and WMATA have been represented by their own counsel; and (3) the riders’ property and awards have been segregated from those of WMATA ACT Recommendation at 3. ACT’s first assertion is incorrect; the restitutionary funds originated in litigation between the riders and the Commission, in the case of the Riders’ Fund, and the riders and the Public Utilities Commission, in the ease of the Bebehick Fund. The Commission and PUC regulated transit fares and services, balancing the riders’ interest in safe, adequate, and inexpensive public transportation with the privately-owned transit operators’ interest in a profit. The interests of the riders conflicted with those of the transit operators, but not with the interests of the Commission and PUC. Indeed, this court stated that “the Commission, in administering the [settlement fund] acts more nearly as a trustee to implement judicial directives concerning the use of the fund than in the statutory regulatory powers.” Williams v. Washington Metro. Area Transit Comm’n, 415 F.2d at 957 n. 199; Bebchick v. Public Utils. Comm’n, 318 F.2d at 204 (“The utilization and disposition of the fund ... shall be left to the discretion of the Commission having regulatory authority with respect to [D.C.] Transit_”). Like its predecessors, WMATA shares the riders’ interest in safe, adequate, and inexpensive public transportation but not the transit operators’ conflicting interest in making a profit. As for the remainder of ACT’s argument, separate counsel and segregated property might well be characteristic of parties whose interests conflict, but they do not, in and of themselves, establish that a conflict exists.

Mr. Bebehick opposes transferring the res-titutionary fund to WMATA “because of the inherent, and in this instance, manifest conflict of interest.” Bebehick Recommendation at 4. Like ACT, Mr. Bebehick neither identifies nor describes the conflict he alleges; unlike ACT, however, he offers no facts in support of his allegation. All he offers is a quotation that, if read in the original, warns of the conflict of interest risks in private, not public, organizations. '

Finally, both ACT and MetroWatch expressed concern that applying the funds to WMATA’s operating budget would result in a commensurate decrease in the contributions from the jurisdictions that fund WMA-TA. The conditions to which the escheat is subject should allay their concerns. Levi Strauss, 224 Cal.Rptr. at 613 n. 10, 715 P.2d at 572 n. 10.

Nearly all the recommendations submitted contained at least one suggestion on how all or part of the restitutionary funds should be specifically allocated. Although many had merit, it is not our function to supervise or dictate WMATA’s budget. It is for this reason that, once the transfer of the restitution-ary funds is accomplished, the court will no longer retain jurisdiction over this matter.

Nonetheless, to assure that the restitution-ary funds are used in a manner that most closely serves their original purposes, the escheat to WMATA is subject to the following two conditions. First, the restitutionary funds cannot be the basis for any reduction in the contributions due from the jurisdictions that fund WMATA Second, with two exceptions mentioned below, WMATA must use the funds, as it has proposed, exclusively for “the pinchase of new buses for use in the affected service area.” Letter from Polk to Bebehick of 1/19/96 at 1. As WMATA explained, purchasing new buses would provide

widespread, long-lasting and tangible benefits for the farepaying public, ... [including] improved service, increased safety, reduced operating costs, lower maintenance costs, improved environmental performance, and standard features to aid the elderly and disabled.

Id. at 2. While the . funds must be spent primarily for new buses, we recognize that WMATA will inherit responsibilities from the current Riders’ Fund trustee, the Bank of New York. Accordingly, we also authorize WMATA to use a reasonable portion of the restitutionary funds to cover the cost of (i) liquidating the real property assets in the Riders’ Fund (including the cost of such legal and real estate services as it may deem appropriate to help realize the assets’ potential value) and (ii) prosecuting the judgment the Riders’ Fund has against D.C. Transit.

III. Conclusion

We conclude that the Riders’ Fund and the Bebchick Fund should be consolidated pursuant to Article Two of the Riders’ Fund Trust Agreement, see Democratic Cent. Comm. of the Dist. of Columbia v. Washington Metro. Area Transit Comm’n, 41 F.3d at 758-59, and that all the assets of the restitutionary funds, both liquidated and unliquidated, be transferred to WMATA, subject to the conditions described above. WMATA is directed within sixty days to submit implementing orders to the court.

So ordered.

      . The term "cy pres” is derived from the Norman French expression cy pres comme possible, which means "as near as possible." The cy pres doctrine is a rule of construction used to preserve testamentary charitable gifts that otherwise would fail. When it becomes impossible to carry out the charitable gift as the testator intended, the doctrine allows the “next best” use of the funds to satisfy the testator’s intent "as near as possible.” Natalie A. Dejaríais, Note, The Consumer Trust Fund: A Cy Pres Solution to Undistributed Funds in Consumer Class Actions, 38 Hastings LJ. 729, 730 (1987).

      . Implementing fluid recovery, also referred to as "fluid class recovery,” in federal class actions is controversial. DeJarlais, supra note 1, at 738 & n. 62. In Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2d Cir.1973), vacated on other grounds, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), the Second Circuit held that the class-wide damage assessment utilized in fluid recovery violates due process and that reading fluid recovery into Rule 23 of the Federal Rules of Civil Procedure improperly alters substantive rights in violation of the Rules Enabling Act. The Fourth and the Ninth Circuits have relied on Eisen to disallow fluid recovery distribution methods in class actions. See Windham v. American Brands, Inc., 565 F.2d 59, 72 & n. 41 (4th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978); Kline v. Coldwell Banker & Co., 508 F.2d 226, 233-34 (9th Cir.1974). Others have argued that the use of separate trials for liability and damages in fluid recovery deprives defendants in class actions of their seventh amendment, right to trial by jury. William H. Simon, Class Actions — Useful Tool or Engine of Destruction?, 55 F.R.D. 375, 385-86 (1973). State courts, in particular California, have been more hospitable to fluid recovery in class actions. This case, however, is not a class action; the constitutional challenges mentioned above are not at issue here.

      .Action for Community Transportation (“ACT”) suggested that $3.5 million of the restitutionary fund be used to reduce the bus and rail fares between 5:30 a.m. and 6:30 a.m. from rush hour rates to non-rush hour rates. Kathleen Berkow-itz, a member of WMATA’s Elderly and Handicapped Advisory Committee and MetroAccess subcommittee, suggested in her recommendation that a part of the restitutionary funds go to subsidize those who find the MetroAccess rate a financial hardship.

      . See Recommendations of Democratic Central Committee of the District of Columbia, the Black United Front, the Government of the District of Columbia (liquid assets only), Barbara Young, and WMATA.

      . See Recommendations of Leonard N. Bebchick and MetroWatch.

      . See Recommendation of ACT.

      . The court strongly suggests that, before liquidating the real property assets of the Riders’ Fund, WMATA consult with the Bank of New York about maximizing the potential value of the property. WMATA should also make arrangements for assuming responsibility for prosecuting the judgment the Riders’ Fund has against D.C. Transit.


author: PER CURIAM: PER CURIAM:

text:
    In re Janet G. MULLINS (Mullins Fee Application).
    Division No. 92-9.
    United States Court of Appeals, District of Columbia Circuit.
    (Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, as Amended).
    May 31, 1996.

      Before SENTELLE, Presiding Judge, BUTZNER and FAY, Senior Circuit Judges.
   ORDER

PER CURIAM:

This matter coming to be heard and being heard before the Special Division of the Court, upon the application of Janet G. Mullins for reimbursement of attorneys’ fees pursuant to section 593(f) of the Ethics in Government Act of 1978, as amended, 28 U.S.C. §§ 591-599 (1994), and it appearing to the Court for the reasons set forth more fully in the opinion filed contemporaneously herewith, that the motion is well taken, it is hereby

ORDERED, ADJUDGED, AND DECREED that the United States reimburse Janet G. Mullins for attorneys’ fees and expenses she incurred during the investigation by Independent Counsel Joseph E. diGenova in the amount of $223,186.66, this 31st day of May, 1996.

PER CURIAM:

Janet G. Mullins petitions this court under section 593(f) of the Ethics in Government Act of 1978, as amended, 28 U.S.C. §§ 591-599 (1994) (“the Act”), for reimbursement of attorneys’ fees and expenses that she incurred during and as a result of the investigation conducted by Independent Counsel (“IC”) Joseph E. diGenova. Mullins seeks reimbursement in the amount of $348,149.69 for representation from December 1992 through June 1995. After considering Mullins’ petition, we find that her request is for the most part reasonable and that she is entitled to attorneys’ fees and expenses totaling $223,186.66.

BACKGROUND

In the fall of 1992, during the presidential campaigns of then-Governor William J. Clinton and then-President George H.W. Bush, a rumor circulated that Clinton, while studying in England during the Vietnam War, had written a letter renouncing his United States citizenship or seeking dual citizenship for the purpose of evading the military draft. See Final Report of the Independent Counsel in Re: Janet G. Mullins, Nov. 30,1995, at 1. In response to the rumor, several news organizations filed requests with the Department of State (“State”) and the Department of Justice (“DOJ”) under the Freedom of Information Act, 5 U.S'.C: § 552 (“FOIA”), seeking information about Clinton’s citizenship and military draft status during the late 1960’s and early 1970’s or, more specifically, the alleged renunciation letter. Also, Congressman Gerald Solomon filed a request with State’s Legislative Affairs Office seeking information on requests for dual citizenship. Id. Around the same time, the existence of the FOIA requests came to the attention of the Bush White House staff, including Janet G. Mullins, who served as Assistant for Political Affairs to Bush and who had previously worked at State. On September 16, 1992, Bush’s Chief of Staff, James A. Baker, III, discussed the requests and State’s procedure for expediting such requests with Mullins and Margaret Tutwiler, Assistant to the President for Communications. Mullins subsequently told Baker that she would find out what she could about the requests. Id, at 2.

In response to the FOIA requests, on September 80, 1992, Elizabeth M. Tamposi, the Assistant Secretary of State for Consular Affairs, directed that a search be made for passport records pertaining to Clinton. State employees conducting the search first reviewed a computerized index of passport applications and then, at Tamposi’s request, a team of three senior Consular Affairs officials went to the Washington National Records Center to conduct a manual search of passport records. While the search was in progress, Tamposi tried to contact Tutwiler at the White House but was only able to leave a message for Tutwiler, who was meeting with Mullins at the time. Tutwiler did not return Tamposi’s call. Id. Tamposi also called Steven K. Berry, Assistant Secretary of State for Legislative Affairs, to determine what he knew about the FOIA requests, and she informed him that a search was underway. Berry then contacted Mullins at the White House and told her about the search, and she, in turn, told Tutwiler, who urged Mullins to notify Baker. Id. at 2-3.

The searchers located Clinton’s passport file, which was askew in its storage box, but they did not find the rumored renunciation letter. They removed Clinton’s file from the records center and took it to Tamposi at her home that evening. She and the searchers thought that Clinton’s 1976 passport application had a suspicious tear in the upper left corner that suggested a document attached to the application had been removed. Tam-posi contacted Berry that night to tell him that no renunciation letter had been found, and she relayed her suspicions about possible . tampering with the file. Id. at 3.

The next day, the searchers renewed their search at the records center and then returned to State and prepared a memorandum with Tamposi that detailed the search results, including their concerns about possible tampering with the file. That evening, Tam-posi contacted State’s Inspector General Sherman Funk, showed him the 1976 application, and turned the tampering issue over to him. Funk then contacted the Federal Bureau of Investigation (“FBI”) to handle the tampering concerns, due to the FBI’s forensic capabilities. Id. at 3-4.

Baker, aware that the FOIA requests did not meet the requirements for expedited handling and that Clinton’s passport records were protected by the Privacy Act, warned Mullins on October 2 not to have anything to do with the records search at State. Mullins replied that while she had discussed the matter with Berry, neither she nor anyone else at the White House bore any responsibility for the search. Mullins subsequently contacted Berry and conveyed Baker’s comments and also asked Berry to relay a message to Tamposi from Tutwiler to the effect that while Tutwiler did not want to be rude, she would not be returning Tamposi’s call. Berry conveyed the message to Tamposi, but added his own editorial comment that Tutwiler appreciated all Tamposi was doing. Id. at 4-5.

Shortly thereafter, Newsweek magazine published a story about the search of Clinton’s passport files and the possible tampering. When, on October 9, the FBI announced that it found no evidence of tampering, the media then began to focus on why the passport files search had been undertaken in the first place. These inquiries revealed, among other things, that the FOIA requests had been improperly expedited by State, that the search team included political appointees, and that the Operations Center at State had monitored phone calls related to the passport search. Based on these revelations, Funk began an investigation of the passport files search, through which he became aware of the connection between Mullins and Berry. Concerned that the White House may have been involved in the search, Funk directed investigators to interview Mullins, which they did by phone and in person. According to the memorandum of the phone interview prepared by one of the investigators, Mullins stated that her only knowledge about the passport files search was from what she read in the newspapers and that she could not recall whether she told Berry to instruct Tamposi not to call the White House. In the memorandum of the in-person interview with Mullins, however, thfe- investigator reported that Mullins said she and Berry had discussed the search and that she had some knowledge based on these discussions. Based on the apparent discrepancy in the reports of Mullins’ interviews and the contact between Mullins and Berry, Funk concluded that Mullins may have made false statements to the investigators, and he referred the case to DOJ for further action. Id. at 4-6.

On December 10, DOJ Criminal Division recommended to Attorney General William Barr that he seek appointment of an independent counsel and, on December 11, Barr asked this court to do so. On December 14, one day before the Independent Counsel Act then in effect expired, we appointed Joseph E. diGenova Independent Counsel with authority to investigate and prosecute violations of federal criminal law in connection with the search of Clinton’s passport files, including whether Mullins or others made false statements to State investigators or otherwise sought to obstruct Funk’s investigation. Id. at 6-7. IC diGenova’s investigation began in December 1992 and ended in November 1995, with the release of his Final Report. In the Final Report, IC diGenova stated that he found no evidence warranting the criminal prosecution of anyone for their conduct in connection with the passport files search, the disclosure of information from the files, or State’s investigation of the search. Id. at 377. Regarding Mullins specifically, IC diGenova concluded that, due to discrepancies between the State investigators’ contemporaneous interview notes and their later-prepared reports on the interviews with Mullins, there was substantial doubt that Mullins made some of the statements attributed to her by State investigators, that the statements she did make were true or sufficiently ambiguous that proof of their falsity would be impossible, and that even if Mullins made a statement that was arguably false, she made it without any intent to deceive the Inspector General. Id. at 390.

Pursuant to the Act, this court, as directed by section 593(f)(2), forwarded a copy of Mullins’ fee petition to the Attorney General and the IC and requested that they file written evaluations of the petition. The court expresses its appreciation to the Attorney General and the IC for submitting these evaluations, which we have given due consideration in arriving at the decision announced herein.

ANALYSIS

Mullins is entitled to attorneys’ fees under the Act if she satisfies section 593(f)(1), which allows the “subject of an investigation conducted by an independent counsel,” “if no indictment is brought against such individual pursuant to that investigation,” to request reimbursement for “those reasonable attorneys fees incurred by that individual during that investigation which would not have been incurred but for the requirements of [the Act].” 28 U.S.C. § 593(f)(1). As this, court has previously held, a successful petitioner must thus demonstrate that:

(1) he is a “subject” of such 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 North (Cave Fee Application), 57 F.3d 1117, 1119 (D.C.Cir.1995) (per curiam). We will address each of these requirements in turn.

A “Subject” Status

Mullins states that there is no question that she qualifies as a subject under the Act because IC diGenova specifically notified her that she was a subject of his investigation and she was not indicted. See In re North (Shultz Fee Application), 8 F.3d 847, 850 (D.C.Cir.1993) (per curiam) (noting that individual squarely met the subject requirement where IC told him he was a subject). Although DOJ and the IC agree that Mullins plainly qualifies as a subject, they assert that her subject status ended on May 20, 1994, when IC diGenova notified her attorney by letter that he did not intend to seek charges against Mullins and that, based on the information currently available to him, he did not expect Mullins’ status to change during the remainder of the investigation. Mullins argues, that this did not end her subject status since IC diGenova’s letter contained the express qualification that based on current information he did not expect her status to change during the remainder of the investigation. See Cave, 57 F.3d at 1120 (holding that grant of use immunity did not end Cave’s subject status because the IC could have obtained information from other sources if he chose to prosecute Cave); Shultz, 8 F.3d at 850 (holding that subject status was not terminated by IC’s statement that, in the absence of new developments, he would seek no new indictments). She also maintains that she reasonably believed that the IC’s investigation continued to focus on her conduct even after the May 20 letter, especially in light of the IC’s October 1994 request for an interview, which Mullins refused, regarding Senator Packwood’s diaries. In sum, Mullins asserts that, because the IC never gave her an unqualified assurance that she was no longer a subject and would under no circumstances become one again, she did not know for certain that she would not be indicted until the Final Report was released.

The court has defined the term “subject” for the purposes of the Act’s fee reimbursement provision as a person whose conduct is within the scope of the independent counsel’s investigation and who knew at the time of incurring the fees that “his conduct was within that scope in such a fashion that ‘the [independent [cjounsel might reasonably be expected to point the finger of accusation’ at him.” Shultz, 8 F.3d at 850 (quoting In re North (Dutton Fee Application), 11 F.3d 1075, 1078 (D.C.Cir.1993) (per curiam)). In Shultz, the court considered three factors when it determined that IC Walsh’s September 17, 1992, statement that he would seek no further indictments did not end Shultz’s subject status. Id. The first factor was that the IC’s statement contained the caveat that, in the absence of further developments, there would be no new indictments. The second factor was that IC Walsh actually did obtain indictments after this statement, which demonstrated that the possibility of new developments was not “sufficiently remote to defeat the objective reasonableness of a determination by Shultz and his counsel that there remained a realistic possibility that the scope of the investigation encompassed his conduct in such a fashion as to make him a potential defendant.” Id. The third factor, which the court deemed “perhaps the most compelling one,” was that Shultz’s attorney asked IC Walsh whether Shultz remained a subject and Walsh had, until Shultz filed his fee application, “not retreated from the proposition that Shultz remained a subject.” Id.

In the instant case, Mullins meets only the first factor through IC diGenova’s May 20, 1994, statement that he did not intend to seek charges against Mullins and that, based on current information, he did not expect Mullins’ status to change during the remainder of his investigation. Unlike the IC in Shultz, however, IC diGenova gave Mullins a specific statement about her subject status, rather than a broad statement about the investigation in general, when he said he did not intend to seek charges against her, and, unlike IC Walsh, IC diGe-nova did not go on to obtain indictments of others after he made that statement to Mullins. Cf. Cave, 57 F.3d at 1120 n. 1 (noting that IC never told Cave that he was no longer a subject). In In re North (Gadd Fee Application), 12 F.3d 252, 256 (D.C.Cir.1994) (per curiam), the court determined that although Gadd claimed he remained at risk of criminal prosecution even after receiving a grant of immunity, he did not remain “under such reasonable apprehension of prosecution that he qualified as a ‘subject’ under the fee award statute thereafter.” See also Dutton, 11 F.3d at 1079 (noting that although grant of use immunity is not dispositive, it does change the reasonable perception about whether attorneys’ fees incurred after the grant were reasonably related to a defense of the independent counsel’s investigation). Thus, even though Mullins asserts that she could not be sure that she would not be indicted until the release of the Final Report, we conclude that after IC diGenova notified her that he would not seek charges against her based on current information, she did not remain “under such reasonable apprehension of prosecution,” Gadd, 12 F.3d at 256, for her activities in connection with the search of Clinton’s passport files so as to continue her subject status for the remainder of IC 'diGe-nova’s investigation. Accordingly, Mullins’ subject status ended on May 20,1994, and we will not award fees for representation thereafter, except in connection with the Final Report.

B. Fees Incurred “During” the Investigar tion -

Mullins states that she seeks fees for representation from December 14, 1992, to June 27, 1995. The court has identified the maximum time for which fees can be sought as spanning from when an IC begins an investigation of an individual through 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.1989) (per curiam). The relevant time period in this ease is from December 14, 1992, when IC diGenova was appointed, to the August 4,1995, deadline for filing comments to the Final Report. Although the time sheets submitted by Mullins list charges incurred before December 14, 1992, she properly excluded these fees from her request.

C. Fees Not Incurred “But For” the Requirements of the Act

In In re Nofziger, 925 F.2d 428 (D.C.Cir.1991) (per curiam), the court identified three circumstances under which the “but for” requirement of the Act was satisfied:

First, the court has awarded fees in cases in which the subject is prejudiced by the Department of Justice’s failure to comply with the substantial protective features of the Act....
Second, fees have been awarded because independent counsel’s investigation constituted a substantial duplication of prior investigations. ...
Third, the court has awarded fees in two cases in which if the requirements of the Act, restricting the Attorney General’s preliminary investigation, did not exist, ... the case could have been disposed of at an early stage of the investigation, without seeking appointment of independent counsel.

Id. at 438 (citations omitted). Mullins argues that all three circumstances are present in this case. She points out that State’s investigation, which was poorly executed, led to the suspicions that she might be guilty of misconduct and, had the Attorney General not been rushed by the sunset provisions of the Act that limited his investigation to ten days rather than the usual ninety, he would have conducted an adequate preliminary investigation and thereby discovered the sloppy reporting of Mullins’ interviews by State investigators and the lack of evidence against her. Thus, she maintains that the Act’s restrictions hampered the Attorney General’s investigation. Further, Mullins asserts, the appointment of the IC led to a substantial and unnecessary duplcation of the investigative efforts already undertaken by State, which imposed great personal and financial costs on her. See In re Olson, 892 F.2d 1073, 1074 (D.C.Cir.1990) (per curiam) (finding “but for” requirement sátisfied because “Perry was being subjected to expenses for a duplicative investigation that he would not have been subjected to in the absence of the Ethics in Government Act.”).

DOJ does not take issue with Mullins’ assertions, and the IC notes the Final Report concludes that had DOJ had the opportunity to review the State investigators’ underlying notes, it would not have sought the appointment of an independent counsel in this matter. The IC, however, raises the possibility that Mullins would have incurred some attorneys’ fees even if DOJ conducted a preliminary investigation without then requesting an independent counsel and suggests that an estimate of such hypothetical fees be deducted from Mullins’ fee award. We reject this approach because it is too speculative and fails to take into account the fact that Mullins actually incurred attorneys’ fees in connection with State’s report and referral to DOJ before the IC’s appointment that she will not recover under the Act.

Based on the foregoing, we conclude that Mullins would not have incurred the attorneys’ fees and expenses for which she seeks reimbursement “but for” the requirements of the Act.

D. Fees are “Reasonable” under the Act

1. Attorneys’fees

As we have often observed, the fee petitioner bears the burden of establishing all elements of her entitlement. See, e.g., Shultz, 8 F.3d at 850. Mullins must therefore demonstrate that her attorneys charged a reasonable rate and that the time they expended on her representation was reasonable. See In re North (Gardner Fee Application), 30 F.3d 143, 146 (D.C.Cir.1994) (per curiam). Based on the affidavits and other exhibits submitted by Mullins, we conclude that the hourly rates charged by her attorneys ($90 — $295) comport with prevailing community standards and are within the realm of reasonableness. Id. We also conclude that she has, for the most part, provided adequate descriptions and documentation of the work performed. See National Ass’n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C.Cir.1982) (per curiam) (holding that a fee application must contain sufficiently detailed information about the hours logged and the work done). Mullins submits numerous monthly bills for attorneys’ fees and expenses and we will review each bill separately to ensure that all items sought are reimbursable under the Act and are reasonable.

The January 1993 bill totals $22,322.50 and Mullins subtracts $6,800 for representation prior to IC diGenova’s appointment on December 14, 1992, and $632.50 for research in connection with recovering attorneys’ fees, which is not reimbursable under the Act. See Gadd, 12 F.3d at 257 (holding that “fees for fees” are not reimbursable under 28 U.S.C. § 593(f)(1)). We find reasonable the remaining fees of $14,890. The February 1993 bill is for $20,468.75 in attorneys’ fees and Mullins subtracts $275 for work on the attorneys’ fees issue. We find reasonable the remaining fees of $20,193.75.

The March 1993 bill totals $53,993.75 in fees, including fees incurred in connection with Mullins’ attempt to quash a grand jury subpoena issued to her for records in her possession on the ground that the subpoena arose from the illegal telephone monitoring by State. On August 16, 1993, the district court rejected Mullins’ challenge to the subpoena and ordered her to produce the documents, ruling that she lacked standing because she was not a party to any of the monitored phone calls and because the monitoring was not directed at her. Final Report at 33. Mullins filed a series of stay motions and an appeal and refused to turn over the documents until she was threatened with incarceration for contempt. After the denial of her emergency motion for a stay of the contempt order, Mullins produced the responsive documents on September 17, 1993. Id. at 34-36. The IC argues that once the district court ruled that Mullins lacked standing to contest the subpoena, the litigation strategy Mullins followed thereafter was frivolous and should not be reimbursed under the Act. Mullins responds that the Act does not authorize .the IC or the court to revisit the merits of legal choices made by counsel during a subject’s representation, and she emphasizes that, as the focus of the investigation, she had to mount the most aggressive defense possible. She therefore maintains that the IC has no basis upon which to claim that her continued challenge to the subpoena was frivolous.

As we have previously observed, fees that may not be “unreasonable between a first class law firm and a solvent client, are not [always] supported by indicia of reasonableness, sufficient to allow us justly to tax the same against the United States.” Shultz, 8 F.3d at 852; see also In re Donovan, 877 F.2d 982, 996 (D.C.Cir.1989) (per curiam) (noting that without passing judgment on the propriety of professional judgments, counsel is riot free to exercise judgment in a way that unnecessarily inflates the other party’s fee liability). Thus, while “we do not ‘pass judgment on the propriety’ of professional decisions of counsel or the wisdom of their client’s decision in its contract, ... we are duty bound to recall that Congress required us to exercise our independent judgment on the reasonableness of fees requested before taxing them against the United States.” In re North (Bush Fee Application), 59 F.3d 184, 189 (D.C.Cir.1995) (per curiam) (quoting Donovan, 877 F.2d at 996).

Although we would not characterize as frivolous Mullins’ continuing challenge to the subpoena after the district court ruled against her, we conclude that it lacks “indicia of reasonableness” sufficient to justify billing this cost to the public fisc. Shultz, 8 F.3d at 852. Accordingly, we will deduct fees incurred in continuing to challenge the subpoena after August 16, 1993. While this deduction does not affect the March 1993 bill, there are other deductions for reasonableness that we must make from the March bill. First, although it is difficult to tell precisely since fees are listed on a per day rather than a per task basis, it appears that for preparation of the motion to quash the subpoena partner Thomas Wilson billed a total of 94.75 hours at $275 per hour and associate James Edmundson billed 125.5 hours at $125 per hour. We find that Mullins has failed to demonstrate the reasonableness of spending a total of 220.25 hours ($41,743.75) on the preparation of this one motion and we will reduce by one-half the fees awarded for the preparation of this motion. See American Petroleum Inst. v. EPA, 72 F.3d 907, 915-16 (D.C.Cir.1996) (reducing fees for failure to demonstrate reasonableness of time spent on motions). We will also deduct the fees billed by Edmundson for attending two joint defense meetings that Wilson also attended, which we estimate as totaling $600 (4 hours at $125 per hour). See Bush, 59 F.3d at 190 (deducting fees for duplication of effort). Based on the foregoing, we award $32,521.87 in attorneys’ fees claimed on the March 1993 bill.

The April 1993 bill is for $5,856.25, from which Mullins subtracts $31.25 for fees in connection with a trust agreement. We find the remaining $5,825 reasonable. The May 1993 bill is for $28,507.50 but it includes the same fees listed in the April bill, so first we will subtract $5,856.25, which leaves $22,-651.25 for May. Three attorneys bill 2.5 hours each for attending a meeting together and, to avoid reimbursement for duplication of effort, we will deduct the fees incurred by the two lowest-billing attorneys, which total $725. See id. Starting in the May bill and continuing into the June one, Mullins’ attorneys expended in excess of 130 hours preparing a reply to the IC’s opposition to the motion to quash. As we noted in connection with the preparation of the motion to quash, Mullins has failed to demonstrate the reasonableness of spending this much time on the preparation of the reply, especially given the large amount of time already expended on the initial motion, and we will reduce by one-half the fees awarded for the preparation of the reply. See American Petroleum Inst., 72 F.3d at 915-16. Because the billing is not done on a per task basis our calculations will necessarily be rough, and we estimate that in the May 1993 bill Wilson spent 22.5 hours at $275 per hour on the reply, Edmundson spent 36.25 hours at $125 per hour, and Mary Beth Sullivan spent 13.75 hours at $165 per hour, for a total of $12,987.50 billed for the reply in May. Accordingly, we will deduct $6,493.75 from the May charges and award $15,432.50 in fees for that month.

The June 1993 bill is for $15,473.75 and it lists 25.75 horirs for Wilson, 33 hours for Edmundson, and 4.75 hours for Sullivan expended in preparation of the reply. These hours amount to $11,990 in fees, and we will deduct half this amount from the total June bill, thus awarding $9,478.75 for this month.

The July 1993 bill is for $4,237.50 and Mullins deducts $93.75 in nonreimbursable fees for document deliveries by professionals. See Bush, 59 F.3d at 194 (deducting professional time billed for delivery of documents). We find the remaining $4,143.75 reasonable.

The August 1993 bill is for $18,-616.25 but it includes the $4,237.50 already billed in July 1993, thus leaving $14,378.75 properly attributable to August. It also includes billing for Mullins’ motion to intervene in and quash IC diGenova’s June 30, 1993, subpoena to C & P Telephone Company for the toll records of Mullins’ home telephone. Although the district court allowed Mullins to intervene, it denied the motion to quash on the basis that she was not an aggrieved person and lacked standing. The IC argues that Mullins’ should not be reimbursed for work on the motion to quash the C & P subpoena since her position was frivolous in light of the Supreme Court’s repeated affirmation of “the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time the subpoena is issued.” United States v. Miller, 425 U.S. 435, 444, 96 S.Ct. 1619, 1624, 48 L.Ed.2d 71 (1976). The IC further observes that courts have consistently found telephone toll records to fall within the scope of Miller. See, e.g., United States v. Baxter, 492 F.2d 150, 167 (9th Cir.1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974); United States v. Covello, 410 F.2d 536, 542 (2d Cir.), cert. denied, 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 136 (1969). Mullins replies that the motion was not frivolous since Miller and the other eases cited by the IC do not specifically address the anti-wiretap statute, upon which she based her challenge.

In Reporters Committee for Freedom of the Press v. American Telephone and Telegraph Company, 593 F.2d 1030, 1045, 1044-46 (D.C.Cir.1978), cert. denied, 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979), the court held that Miller applies to toll records maintained by telephone companies, noting that a “telephone subscriber is fully aware when he places a long distance call that the telephone company will make a record of the call, that the record is the company’s property, and that the Government has ready access to the record for law enforcement purposes.” Mullins does not adequately explain how she could distinguish this clear Circuit precedent, and we therefore find that she has failed to demonstrate the reasonableness of the time expended in preparing the motion to quash the C & P subpoena and will not reimburse the fees incurred in connection with this filing. Specifically, in the August 1993 bill Wilson billed 8.75 hours at $275 per hour and Edmundson billed 29.5 hours at $125 per hour in connection with the motion to quash the C & P subpoena. Accordingly, we deduct $6,093.75 from the remainder of the August 1993 bill and award $8,285 in reasonable fees for this month.

The September 1993 bill totals $56,537.50, but includes previously billed time entries up to July 28, 1993, which already appeared in the August bill, and we will therefore subtract $14,378.75 for these items. On July 28, Edmundson billed 5.25 hours for several tasks, one of which was finalizing the reply brief in support of the motion to quash the C & P subpoena. We estimate that this task took 3 hours and will subtract $375. The district court denied Mullins’ motions to quash on August 16, 1993, and, as we concluded above, Mullins has not demonstrated the reasonableness of the fees expended appealing and otherwise resisting the district court’s ruling denying her challenges to the subpoenas. We will therefore deduct the 66.25 hours at $275 per hour billed by Wilson, the 72.5 hours at $125 per hour billed by Edmundson, and the 4.75 hours at $90 per hour billed by William Birchfield on these matters, for a total of $27,708.75. Accordingly, we award $14,075 for the September 1993 bffl.

The October 1993 bill totals $48,643.75. Continuing the deductions for time expended challenging the district court’s ruling on the subpoenas, we subtract the fees for 73.75 hours at $275 per hour for Wilson and 92.5 hours at $125 per hour for Edmundson, for a total of $31,843.75. Mullins correctly takes out $125 for time spent replying to media inquiries. See In re Meese, 907 F.2d 1192, 1203 (D.C.Cir.1990) (per curiam) (deducting fees for media-related activity as not reasonably related to defense of an independent counsel investigation). This leaves $16,675 in reimbursable fees for the October 1993 bill.

We find reasonable the November bill for $3,525 and the December 1993 bill for $2,737.50. The January 1994 bill totals $6,112.50 and Mullins deducts $137.50 for time spent in connection with fee reimbursement research. We find the remaining $5,975 reasonable.

The February 1994 bill is for $10,677.50, but it includes the $6,112.50 billed in January. The remaining $4,565 is reasonable. The March 1994 bill totals $5,232.50, all of which is reasonable.

The April 1994 bill is for $22,572.50 and includes fees for a March 14 meeting with IC diGenova and telephone conference call with Mullins in which both Wilson and Edmund-son participated. We estimate that these two activities took three hours and deduct Edmundson’s hours billed at $140 per hour ($420) for duplication of effort. See Bush, 59 F.3d at 190. We find reasonable the remaining $22,152.50.

The May 1994 bill totals $18,-597.50 and includes fees for both Wilson and Edmundson to attend Mullins’ interview by IC diGenova on April 5, 1994. While we have been deducting fees for duplication of effort, we acknowledge the reasonableness of two attorneys attending such a critical interview and therefore allow the fees of both attorneys for this meeting. On April 19, however, both attorneys participated in a telephone conference call with the attorney for another subject regarding Mullins’ interview and we deduct the fee for the lower-billing attorney (1 hour at $140) for duplication of effort. We therefore allow $18,457.50 in fees for this month.

The June 1994 bill is for $3,797.50 and includes billing for services rendered after May 20, 1994, the date on which IC diGenova notified Mullins that she was no longer a subject. The fees incurred up to and including May 20 are reasonable, and we will allow fees incurred on May 23 for the necessary winding-up activities of organizing the files and discussing the effect of the May 20 letter. In sum, we allow $3,383.75 for this month.

Because Mullins no longer qualified as a subject after May 20,1994, she cannot recover her fees for the remaining months of IC diGenova’s investigation. She can, however, recover fees incurred in reading and deciding whether to respond to IC diGenova’s Final Report. See Donovan, 877 F.2d at 994 (permitting fees for preparation of response to final report since Act permits subjects to file comments and factual information for inclusion in appendix to report). Starting May 8, 1994, Mullins incurred $8,745.62 in connection with the Final Report, all of which we find reasonable.

In sum, we award $216,294.99 to Mullins in attorneys’ fees that she incurred during the 'investigation conducted by IC diGenova.

2. Expenses

Mullins seeks $8,869.07 in expenses incurred in connection with her representation during the investigation, which she states consist chiefly of charges for photocopying, computerized legal research, word processing services, telexes, delivery services, telephone charges, and cab fare. We will examine these expenses on a month-by-month basis to determine whether they are reasonable and reimbursable under the Act.

Mullins seeks expenses of $583.50 incurred in January 1993 for delivery services, photocopying, and fax charges, all of which we find reasonable. For February 1993, she seeks $1,222.40 for delivery, fax, and photocopying charges, which we will allow. Reimbursable expenses incurred primarily in March 1993 total $701.94. Starting with the April 1993 expenses, Mullins seeks reimbursement for word processing charges. Because she has provided no further justification for these charges beyond their bare description, it appears that they fall within the bounds of attorneys’ overhead, much like secretarial overtime, which is not reimbursable under the Act. Bush, 59 F.3d at 195. As we have previously observed, “the most commonly offered justification for hourly rates that strike most non-lawyers as exorbitant is that they include not only the attorney’s time but the payment of his overhead.” Id. Such overhead costs are not separately reimbursable over and above rates that already approach $300 per hour. Accordingly, we will deduct these word processing charges and allow $244.60 for April 1993 for photocopying, fax, and delivery expenses.

Reimbursable May 1993 charges for photocopying, fax, and delivery services total $252.35; June charges for the same services total $68.40. Disallowing word processing and unexplained taxi charges, see id., leaves $639.61 in reimbursable expenses for July and $173.57 for August. The September 1993 bill lists numerous expenses incurred in connection with the appeal of the district court’s denial of Mullins’ motion to quash the subpoenas. For the reasons indicated above, these expenses, like the related attorneys’ fees, are not reimbursable. The bill also lists $1,577.50 in copying charges, which are not otherwise identified, and we will deduct one-half of these charges to avoid reimbursement for appeal-related copying expenses. After deducting charges for word processing and unexplained taxi service, we conclude that there are $1,396.11 in reimbursable expenses for September.

For October 1993, after deducting appeal-related expenses and all taxi charges except for one round trip connected with a filing, we allow $344 for delivery, fax, copying, and transcript expenses. The November charges total $430.35, and the December charges total $338.19, all of which is reimbursable.

The January 1994 charge of $60.25 for copying, and the February charges of $83.10 for computerized research, faxing, and copying, and the March charges of $158.75 for delivery, fax and copy services are all reasonable. As for April, we allow the $7 charge for delivery service, while deducting charges for word processing and unexplained taxi fare. Finally, we allow expenses up to May 23, the last day for which we allow fees arising from Mullins’ subject status. These expenses total $187.55 for copying, fax, delivery, and phone services.

Mullins requests no expenses in connection with the Final Report. Accordingly, we award $6,891.67 in total expenses.

CONCLUSION

Based on the foregoing analysis, we will grant Mullins’ petition in part and award $216,294.99 for attorneys’ fees and $6,891.67 for expenses, making a total award of $223,-186.66.

Judgment accordingly.