United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 19, 2002
Division No. 98-1
In Re: Bruce Edward Babbitt
(Thornberry 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.
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 B. J.
Thornberry 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
__________
* Separate opinion concurring in the judgment filed by Senior
Circuit Judge Cudahy.
ORDERED, ADJUDGED, and DECREED that the peti-
tion of B. J. Thornberry for attorneys' fees she incurred
during the investigation by Independent Counsel Carol Elder
Bruce 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 July 19, 2002
Division No. 98-1
In Re: Bruce Edward Babbitt
(Thornberry 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 of the Special Court filed Per Curiam.
Separate opinion concurring in the judgment filed by Sen-
ior Circuit Judge Cudahy.
Per Curiam: B. J. Thornberry petitions this court under
section 593(f) of the Ethics in Government Act of 1978, as
amended, 28 U.S.C. s 591-599 (2000) (the "Act"), for reim-
bursement of attorneys' fees in the amount of $4,163.61 that
she incurred during and as a result of the investigation
conducted by Independent Counsel ("IC" or "OIC") Carol
Elder Bruce. Because we conclude that Thornberry has not
carried her burden of showing that she was a subject of the
investigation or that the fees would not have been incurred
but for the requirements of the Act, we deny the petition in
its entirety.
Background
The facts of the investigation conducted by IC Bruce are
set forth in detail in In re Babbitt (Babbitt Fee Application),
290 F.3d 386 (D.C. Cir., Spec. Div., 2002) (per curiam). For
present purposes, we briefly note that IC Bruce was appoint-
ed to investigate allegations that the White House had im-
properly influenced the 1995 decision of the U.S. Department
of the Interior ("DOI") to deny the application of three Indian
tribes to take off-reservation land into trust in order to
establish a casino on the property, and that Secretary of the
Interior Bruce Babbitt had lied about the decision to Con-
gress. The allegations concerning the denial included contri-
butions of a substantial amount of money to the Democratic
National Committee and other Democratic interests by cer-
tain Indian tribes opposed to the casino and that the DOI's
decision to deny the casino application was influenced by
these donations. B. J. Thornberry, the fee petitioner here,
was Executive Director of the DNC from 1996 to 1998; she
had been a Deputy Assistant Secretary at DOI from 1993 to
1994; and she had also held the position of Deputy Chief of
Staff at DOI. In the IC's Final Report, Thornberry's only
mention is a brief entry in a description of the DNC's 1996
fund-raising efforts involving an Indian tribe. Final Report
of the Independent Counsel In re: Bruce Edward Babbitt at
345.
Thornberry, pursuant to section 593(f)(1) of the Act, has
petitioned this court for reimbursement of the attorneys' fees
she incurred during the IC's investigation. As directed by
section 593(f)(2) of the Act, we forwarded copies of
Thornberry's fee petition to the Attorney General and the IC
and requested written evaluations of the petition. The court
expresses its appreciation to the IC and the Attorney General
for submitting these evaluations, which we have given due
consideration in arriving at the decision announced herein.
Analysis
The Independent Counsel statute provides that
Upon the request of an individual who is the subject of
an investigation conducted by an independent counsel
pursuant to this chapter, the division of the court may, if
no indictment is brought against such individual pursuant
to that investigation, award reimbursement for those
reasonable attorneys' fees incurred by that individual
during that investigation which would not have been
incurred but for the requirements of this chapter.
28 U.S.C. s 593(f)(1). Accordingly, in order to obtain an
attorneys' fees award under the statute, a petitioner must
show that all of the following requirements are met:
1) the petitioner is a "subject" of the 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."
See In re North (Dutton Fee Application), 11 F.3d 1075,
1077-82 (D.C. Cir., Spec. Div., 1993) (per curiam). For the
reasons stated below, we conclude that Thornberry has not
met either the "subject" or the "but for" requirement.
A. "Subject" Status
Thornberry argues that she was a subject of the IC's
investigation because "it is clear from the questions posed to
her that the Independent Counsel was investigating the possi-
bility of [her] involvement in illegal campaign contributions
and other potential violations of Federal law." She makes
this argument in a conclusory manner without reference to
any supporting facts.
We have previously defined the term "subject" as a person
whose conduct is within the scope of the independent coun-
sel's investigation in such fashion that "the Independent
Counsel might reasonably be expected to point the finger of
accusation" at him. Dutton, 11 F.3d at 1078; see also In re
North (Shultz Fee Application), 8 F.3d 847, 850 (D.C. Cir.,
Spec. Div., 1993) (per curiam). We are not persuaded that
the IC was focused on any possible criminal culpability by
Thornberry during the IC's investigation. Her involvement
with the investigation appears to have been minimal: accord-
ing to the IC, she was interviewed on one occasion by the
OIC staff. She had no other contacts with the IC's office.
Cf., e.g., In re North (Gregg Fee Application), 57 F.3d 1115,
1116 (D.C. Cir., Spec. Div., 1995) (per curiam) (numerous
interviews). She was never informed by the IC that she was
a subject of the investigation. Cf., e.g., In re North (Haskell
Fee Application), 74 F.3d 277, 280 (D.C. Cir., Spec. Div.,
1996) (per curiam) (told was subject). On the contrary, the
IC asserts that Thornberry was explicitly and unequivocally
told that she was only a witness--a status which we have
previously held "is not sufficient to meet the elemental re-
quirement of 'subject' designation for purposes of the Act."
In re Pierce (Abrams Fee Application), 190 F.3d 586, 590
(D.C. Cir., Spec. Div., 1999) (per curiam). Finally, the IC's
Final Report mentions Thornberry only very briefly, in its
description of the DNC's 1996 fund-raising efforts, supra.
Cf., e.g., In re North (Adkins Fee Application), 33 F.3d 76,
76-77 (D.C. Cir., Spec. Div., 1994) (per curiam) (no indictment
but report asserts that subject violated law and lied to
investigators). We are thus in agreement with the IC and
the DOJ that Thornberry has not carried her burden of
establishing that she was in fact a subject of the IC's investi-
gation.
B. Fees Not Incurred "But For" the Requirements of the
Act
We have previously established that "[a]ll requests for
attorneys' fees under the Act must satisfy the 'but for'
requirement." In re Sealed Case, 890 F.2d 451, 452 (D.C.
Cir., Spec. Div., 1989) (per curiam). And we have repeatedly
held that "[t]he most difficult element for a fee applicant to
establish under the Act is that the fees 'would not have been
incurred but for the requirements of [the Act].' " In re North
(Bush Fee Application), 59 F.3d 184, 188 (D.C. Cir., Spec.
Div., 1995) (per curiam) (quoting Dutton, 11 F.3d at 1079).
In order to establish eligibility for an award, the fee applicant
must show that the amounts claimed are only those fees and
expenses above and beyond those she would have incurred as
a result of an investigation by the DOJ. In re Sealed Case,
890 F.2d at 452-53. As we stated in In Re Pierce (Olivas Fee
Application), 178 F.3d 1350, 1355 (D.C. Cir., Spec. Div., 1999)
(per curiam), "[i]f the investigative act generating the defen-
sive costs would, in the absence of the Act, have been pursued
by other authorities--'had the case been handled by the
Department of Justice or other executive authorities rather
than the Independent Counsel'--then Congress did not con-
template the award of counsel fees. In Re North (Dutton
Fee Application), 11 F.3d at 1080."
Relying chiefly on In re Sealed Case, Thornberry argues
that she satisfies the "but for" requirement in two ways.
First, she claims that she was subjected to a more rigorous
application of the criminal law than she would have been in
the absence of the Act because in that situation the U.S.
Department of Justice "would not have conducted an investi-
gation with the breadth, scope or duration of that conducted
by the OIC." Second, Thornberry argues that "but for" the
provisions of the Act, which prevented the DOJ from follow-
ing its normal procedures, the investigation could have been
terminated much sooner, or severely limited. In support of
this argument, Thornberry claims that the Attorney General
in her application for appointment of an independent counsel
"stated unequivocally that she believed that there was no
requisite intent in the statements made by Bruce Babbitt and
wished to decline to seek appointment [of an independent
counsel]."
In In re Sealed Case the Attorney General requested the
appointment of an independent counsel to investigate an
alleged tax violation by a government official. 890 F.2d at
453. We found the "but for" requirement fulfilled because
the government official (the fee applicant) had been subjected
to a more rigorous application of the criminal law than is
applied to other citizens. Id. at 454. We made this finding
on the basis of two reasons. First, the Attorney General in
his application for appointment of an independent counsel
represented that the Act's restrictions were a hindrance to
his conducting an adequate preliminary investigation. We
noted that if the Attorney General had not been so hindered
then the government official "might have been subjected to a
lesser investigation, or perhaps exonerated at this early
stage." Id. at 453. Here, although the Attorney General in
her application for appointment of an independent counsel
noted that there was evidence that Babbitt lacked criminal
intent concerning the false statements to Congress allega-
tions, she also noted that there was evidence that Babbitt
may have indeed testified falsely and that the White House
may have dictated the casino denial decision. As such, we
concluded in Babbitt "that there is nothing in the record or in
the circumstances of Babbitt's alleged offenses that indicates
that the Attorney General, if freed of the restrictions of the
Act, would have subjected Babbitt to a lesser investigation, or
perhaps exonerated him at the preliminary investigation
stage." 290 F.3d at 393. We therefore do not agree with
Thornberry that this investigation would have been terminat-
ed much sooner, or severely limited, but for the provisions of
the Act.
The second reason for our finding in In re Sealed Case was
that the independent counsel had been appointed to investi-
gate the applicant's 1981, 1982, and/or 1984 tax returns but
actually examined the applicant's tax returns for nine years,
from 1976 to 1984. 890 F.2d at 454. We stated that the
ordinary examination of a taxpayer for a similar tax offense
"would have been substantially less probing." Id. at 454.
But here, no such less probing examination would have been
made in the absence of the Act. As we made clear in Babbitt,
if IC Bruce had not investigated the deep and widespread
allegations surrounding the denial of the casino application
then other prosecuting authorities would surely have done so.
290 F.3d at 391. Thornberry, therefore, would have been
questioned in the absence of the Act just as she was by the
IC.
Conclusion
The petition of B. J. Thornberry for reimbursement of
attorneys' fees is denied for failure to meet the "subject" and
"but for" requirements of 28 U.S.C. s 593(f)(1).
Richard D. Cudahy, Senior Circuit Judge, concurring in
the judgment:
I agree that for the reasons noted in the majority opinion,
Ms. Thornberry has not established that she was a "subject"
of the investigation primarily directed at Secretary Babbitt.
Therefore, she is not entitled to fees.
However, I do not agree that her application fails to meet
the "but for" test. Like the investigation of Catherine Baker
Stetson, the investigation involving Ms. Thornberry was
merely a part of the Babbitt investigation, and its status with
respect to the "but for" test must be the same as that
assigned to Secretary Babbitt's request for fees. Ms.
Thornberry was involved only peripherally and would not
have been involved at all absent the inquiry into Secretary
Babbitt's affairs. Since I have taken the position that the
Secretary has passed the "but for" test with flying colors
(since he would not have incurred fees "but for" the special
provisions of the Independent Counsel Act regarding proof of
criminal intent), other parties involved in his investigation for
the same reason would have incurred attorneys' fees "but for"
the Act. See In Re: Bruce Edward Babbitt (Stetson Fee
Application), __F.3d__.
The Department of Justice, in its evaluation of Ms.
Thornberry's application for attorneys' fees reached the same
conclusion with respect to her satisfaction of the "but for" test
and supports my analysis.