United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed June 27, 2000
Division No. 89-5
In re: Samuel R. Pierce, Jr.
(Battle Fowler Fee Application)
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, as Amended
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Before: Sentelle, Presiding, Fay and Cudahy, Senior
Circuit Judges.
O R D E R
This matter coming to be heard and being heard before the
Special Division of the Court upon the petition of the law firm
of Battle Fowler 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. s 591 et seq. (1994), and it
appearing to the court for the reasons set forth more fully in
the opinion filed contemporaneously herewith that the peti-
tion is not well taken, it is hereby
ORDERED, ADJUDGED, and DECREED that the peti-
tion of Battle Fowler for attorneys' fees it incurred during the
investigation by Independent Counsels Arlin M. Adams and
Larry D. Thompson be denied.
Per curiam
For the Court:
Mark J. Langer, Clerk
by
Marilyn R. Sargent
Chief Deputy Clerk
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed June 27, 2000
Division No. 89-5
In re: Samuel R. Pierce, Jr.
(Battle Fowler Fee Application)
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.
ON APPLICATION FOR ATTORNEYS' FEES
Opinion for the Special Court filed PER CURIAM.
PER CURIAM: The law firm of Battle Fowler petitions
this court under Section 593(f) of the Ethics in Government
Act of 1978, as amended, 28 U.S.C. s 591 et seq. (1994) (the
"Act"), for reimbursement of attorneys' fees in the amount of
$373,004.48 that it incurred during and as a result of the
investigation conducted by Independent Counsels ("IC") Arlin
M. Adams and Larry D. Thompson. Because we conclude
that the petition was filed inexcusably late, we deny the
petition in its entirety.
In 1981 Samuel R. Pierce, Jr. began an eight year term as
Secretary of the U.S. Department of Housing and Urban
Development ("HUD"). Prior to his appointment, Pierce was
a senior partner at the law firm of Battle Fowler, the fee
petitioner here.
In 1988, an audit by HUD's Inspector General triggered
congressional investigations into abuses, favoritism, and mis-
management at HUD during the 1980s under Pierce's tenure.
Based on information elicited during the congressional inves-
tigations, the House Judiciary Committee wrote to Attorney
General Richard Thornburgh seeking the appointment of an
independent counsel to investigate the matter. Following a
preliminary investigation, Attorney General Thornburgh ap-
plied to this court for appointment of an independent counsel.
On March 1, 1990, we appointed former United States Circuit
Judge Arlin Adams1 as independent counsel "to investigate
... whether Samuel R. Pierce, Jr., and other [HUD] officials
may have committed the crime of conspiracy to defraud the
United States or any other Federal crimes ... relating to the
administration of the selection process of the Department's
Moderate Rehabilitation Program from 1984 through 1988."
Order Appointing Independent Counsel, March 1, 1990. The
IC's mandate was expanded several times thereafter, includ-
ing an expansion to investigate any dealings among Pierce
and Battle Fowler during this same time period.
The IC conducted a comprehensive investigation ultimately
confirming a widespread pattern of corruption at HUD dur-
ing Pierce's tenure. Although the IC announced on January
11, 1995, that he would not seek indictment of Pierce, during
the course of the investigation seventeen (17) other persons
were charged with and convicted of federal crimes as a result
of the IC's investigation. That investigation and the indict-
ments ranged well beyond the core facts of the original
application for appointment of independent counsel. Of par-
ticular reference to the petitioner before us, the IC conducted
a thorough investigation of the contacts between Pierce and
Battle Fowler. In the end, the IC "concluded that none of
these contacts warranted further criminal investigation or
prosecution." See 1 Arlin M. Adams & Larry D. Thompson,
Final Report of the Independent Counsel in Re: Samuel R.
Pierce, Jr. 40 (1998) ("Final Report").
__________
1 Independent Counsel Adams resigned in May of 1995. This
court appointed his deputy, Larry D. Thompson of the Atlanta bar,
to succeed him.
On April 17, 1998, after having received preliminary filing
of the Final Report of the Independent Counsel, this court
ordered that the contents of that report be made available to
each individual named therein, pursuant to 28 U.S.C.
s 594(h)(2), and provided that each individual who so desired
could submit to the court comments or factual information by
August 18, 1998. The court further ordered that those
individuals who were entitled to the reimbursement of attor-
neys' fees under 28 U.S.C. s 593(f) should file petitions for
such fees no later than November 16, 1998. Various individu-
als made such filings. On November 10, 1999, Battle Fowler
filed a petition which we now consider, alleging that it had
been a subject of the investigation and had incurred fees and
expenses by reason thereof in the total amount of $373,004.48.
Timeliness of Petition. On April 17, 1998, we issued an
order in this matter stating, inter alia, that attorneys' fees
petitions were to be filed "with the Court no later than
November 16, 1998." In re Pierce, Div. No. 89-5 (D.C. Cir.,
Spec. Div., Apr. 17, 1998) (order) (emphasis added). Upon its
issuance, the order was forwarded to the fee petitioner.
Nonetheless, the present fee petition was not filed until
November 10, 1999, almost one year after the due date. No
excuse was offered to show justifiable tardiness.
The petition by the law firm of Battle Fowler for reim-
bursement of attorneys' fees is therefore denied.