United States Court of Appeals
DISTRICT OF COLUMBIA CIRCUIT
Filed August 30, 2002
Division No. 98-2
In Re: Alexis M. Herman
(Weaver 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.
ORDER
This matter coming to be heard and being heard before the
Special Division of the Court upon the petition of Vanessa J.
Weaver for reimbursement of attorneys' fees and costs pursu-
ant 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 that the application is allowable only to the
extent reflected in the opinion issued contemporaneously
herewith*, it is hereby
ORDERED, ADJUDGED, and DECREED that the Unit-
ed States reimburse Vanessa J. Weaver for attorneys' fees
and expenses she incurred during the investigation by Inde-
pendent Counsel Ralph I. Lancaster in the amount of
$19,811.50.
Per curiam
For the Court:
Mark J. Langer, Clerk
by Marilyn R. Sargent, Chief Deputy Clerk
__________
* Separate opinion concurring in the judgment filed by Senior
Circuit Judge Cudahy.
United States Court of Appeals
DISTRICT OF COLUMBIA CIRCUIT
Filed August 30, 2002
Division No. 98-2
In Re: Alexis M. Herman
(Weaver 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
Senior Circuit Judge Cudahy.
Per Curiam: Vanessa J. Weaver petitions this court under
section 593(f) of the Ethics in Government Act of 1978, as
amended, 28 U.S.C. s 591et seq. (1994) (the "Act"), for reim-
bursement of attorneys' fees in the amount of $367,707.62
that she incurred during and as a result of the investigation
conducted by Independent Counsel ("IC" or "OIC") Ralph I.
Lancaster, Jr. Because we conclude that Weaver has not
carried her burden of showing that the fees would not have
been incurred but for the requirements of the Act, we deny
the petition except for those fees incurred for review and
response to the IC's final report.
Background
In 1997 the U.S. Department of Justice ("DOJ") received
information that then-Secretary of Labor Alexis M. Herman,
while she was Special Assistant to the President in 1996, had
engaged in possible illegal activity. Specifically, in 1994
Vanessa J. Weaver, a close friend of Herman's, formed a
partnership, International Investment for Business Develop-
ment ("IIBD"), with Laurent J. Yene. In 1996 Singaporean
businessman Abdul Rahman entered into a retainer agree-
ment with IIBD to promote a business of his in Africa.
Weaver and Yene's partnership apparently ended soon there-
after, at which point Yene began making allegations of crimi-
nal conduct on the part of Weaver and Herman. In particu-
lar, Yene claimed that Herman, while Special Assistant to the
President, had agreed to facilitate business for IIBD and
another company co-owned by Weaver in exchange for a
certain percentage of the profits made by the companies as a
result of Herman's efforts. Additionally, Yene claimed that
Herman improperly directed Weaver to solicit campaign con-
tributions for the Democratic National Committee from
clients of IIBD, including Abdul Rahman.
Thereafter, the Attorney General (hereinafter referred to
as "AG" or "DOJ"), pursuant to section 592(a) of the Act,
conducted a preliminary investigation to determine whether
further investigation was warranted into whether Herman
accepted the illegal payments or directed the solicitation of
the illegal campaign contributions. On May 11, 1998, at the
conclusion of the preliminary investigation, the AG, having
determined that further investigation was warranted, submit-
ted her application to us for the appointment of an indepen-
dent counsel to look into the matter (hereinafter referred to
as "Application").
On May 26, 1998, we appointed Ralph I. Lancaster, Jr. as
independent counsel to further investigate the allegations.
The investigation lasted almost two years and included nu-
merous interviews, extensive document review, and substan-
tial grand jury activity. Weaver's finances and those of her
companies were looked into. Ultimately, no charges were
brought against either Weaver or Herman. Abdul Rahman,
however, was indicted on multiple counts of making illegal
campaign contributions. Pursuant to the statute, the IC
submitted a final report to this court on April 7, 2000. 28
U.S.C. s 594(h)(1)(B).
Weaver, pursuant to section 593(f)(1) of the Act, has peti-
tioned this court for reimbursement of the attorneys' fees
that she incurred during the IC's investigation. As directed
by section 593(f)(2) of the Act, we forwarded copies of Weav-
er'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:
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). The petitioner "bears the burden of
establishing all elements of [her] entitlement." In re North
(Reagan Fee Application), 94 F.3d 685, 690 (D.C. Cir., Spec.
Div., 1996) (per curiam). There appears to be no disagree-
ment that Weaver was a "subject" of the IC's investigation.
And although there is some dispute as to whether the fees
were in fact incurred during the IC's investigation and are
reasonable, we nevertheless need only limit our discussion to
the third requirement, known as the "but for" test.
* * * * * * * * * *
We have previously held 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 observed 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 (D.C. Cir., Spec. Div., 1999) (per
curiam), "[i]f the investigative act generating the defensive
costs would, in the absence of the Act, have been pursued by
other authorities--'had the case been handled by the Depart-
ment of Justice or other executive authorities rather than the
Independent Counsel'--then Congress did not contemplate
the award of counsel fees." Id. at 1355 (quoting Dutton, 11
F.3d at 1080).
Weaver argues that she satisfies the "but for" requirement
under three distinct theories.
Duplication of preliminary investigation. We have in the
past awarded fees when the independent counsel's investiga-
tion constituted a substantial duplication of the preliminary
investigation of the DOJ, thus satisfying the "but for" re-
quirement. See In re Olson, 884 F.2d 1415, 1420 (D.C. Cir.,
Spec. Div., 1989) (per curiam) (IC's investigation "necessarily
duplicated ground that had been covered by the preliminary
investigation of the Department of Justice") (emphasis in
original); In re Olson (Perry Fee Application), 892 F.2d
1073, 1074 (D.C. Cir., Spec. Div., 1990) (per curiam) (fee
applicant "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"). Weaver claims
that here the IC's investigation in large measure duplicated
the DOJ's preliminary investigation because "it is clear from
the final report that: (1) the actual matters involved in the
investigation did not stretch beyond the matters of import to
the Attorney General and (2) the analysis involved in reaching
his determination did not differ from that utilized by the
Attorney General in her Application for an Independent
Counsel."
We note that the process of an independent counsel investi-
gation set up by the Act will by its very nature necessarily
replow some of the same ground already tilled by the DOJ.
Section 592(a)(1) directs the Attorney General to conduct a
preliminary investigation "in order to make a determination
... on whether further investigation is warranted, with re-
spect to each potential violation, or allegation of a violation, of
criminal law." 28 U.S.C. s 592(a)(1) (emphasis added). Con-
sequently, the matters under investigation by an independent
counsel are generally going to be the same as those investi-
gated during the preliminary investigation. The question we
need to answer is whether the investigation by the IC merely
duplicates that of the DOJ. Duplication by definition does
not occur if the IC's investigation extends significantly be-
yond that of the DOJ's preliminary investigation. See In re
Olson, 884 F.2d at 1420 ("but for" requirement satisfied
where "[t]he greater portion of [the IC's] investigation" dupli-
cated that of the DOJ) (emphasis added). In In re Pierce
(Kisner Fee Application), 178 F.3d 1356 (D.C. Cir., Spec.
Div., 1999) (per curiam), we stated that the fee applicant
could not satisfy the "but for" requirement by establishing
that the Independent Counsel's investigation duplicated that
of the DOJ because "the Independent Counsel's investigation
ranged far beyond the preliminary investigation not only in
depth but breadth. The matters investigated as to Kisner
are far beyond anything in the preliminary investigation."
Id. at 1360. We find similar circumstances here. Under the
Act the AG was limited to 150 days within which to complete
her preliminary investigation, and while conducting it she was
not allowed, inter alia, to convene grand juries or grant
immunity. 28 U.S.C. s 592(a)(2). According to the IC, the
DOJ in conducting the preliminary investigation gathered
9,500 pages of documents from 15 persons and conducted 100
interviews of 89 persons. In contrast, the IC conducted his
investigation of the allegations surrounding Herman over a
period of almost two years, during which time he obtained
over 250,000 pages of documents, interviewed 168 witnesses
in a series of 203 interviews, questioned 57 persons before the
grand jury of whom 43 had not been questioned as part of the
preliminary investigation, and granted immunity to 12 per-
sons. Additionally, the IC obtained an indictment of Abdul
Rahman on multiple counts of making illegal campaign contri-
butions through Vanessa Weaver, in violation of U.S. election
laws. Therefore, the IC's investigation cannot in any rele-
vant sense be considered duplicative of the DOJ's preliminary
investigation.
The Act restricted the AG's preliminary investigation.
Weaver's second argument for her satisfying the "but for"
requirement is that the provisions of the Act prevented the
DOJ from following its normal procedures during the prelimi-
nary investigation, and that otherwise the investigation would
have been terminated or severely limited. To support this
claim, Weaver cites to the AG's application for the appoint-
ment of an IC where the AG twice mentions the need for
further investigation because of the "limited investigative
tools" available to her under the Act. Weaver contends that
if the AG had not been so limited then the AG "could have
confirmed the conclusion that Yene's allegations were com-
pletely false." As such, Weaver argues that her situation is
"remarkably similar" to that in In re Donovan, 877 F.2d 982
(D.C. Cir., Spec. Div., 1989) (per curiam).
In Donovan we found the "but for" requirement satisfied
because there was a single witness of dubious credibility who
would not cooperate during the preliminary investigation. If
the AG's office had been able to use normal prosecutorial
means to assess the witness's credibility, then there would
have been no need for the appointment of an independent
counsel. Id. at 986-89. Here, in contrast, the principal
witness, Yene, cooperated during the preliminary investiga-
tion, and the allegations against Herman did not rise and fall
simply on his credibility: in requesting the appointment of an
independent counsel, the AG in her Application cited to
"inconsistent and evolving explanations by other critical wit-
nesses." We therefore agree with the IC "that if the Attor-
ney General had had all of the standard prosecutorial tools
available to her, the scope, depth and thoroughness of her
investigation would have been similar, if not identical, to that
of the Independent Counsel."
Subjected to a more rigorous application of the criminal
law. Weaver's final claim for satisfying the "but for" require-
ment is that she was subjected to a more rigorous application
of the criminal laws than she would have been in the absence
of the Act because the "investigation lasted for almost two
years, and examined every nook and cranny of [her] life."
Weaver analogizes her case to both In re Sealed Case, 890
F.2d 451, 454 (D.C. Cir., Spec. Div., 1989) (per curiam), and
In re Meese, 907 F.2d 1192, 1201 (D.C. Cir., Spec. Div., 1990)
(per curiam).
In Meese, we held the "but for" requirement satisfied in
part because "[t]he investigation continued for 14 months and
was broadened far beyond any investigation contemplated by
the initial referral." 907 F.2d at 1201 (footnote omitted). We
noted that Meese also fulfilled the "but for" requirement in
part because no preliminary investigation pursuant to the Act
was conducted prior to referral of the matter to the indepen-
dent counsel by the Acting Attorney General; the referral
"did not eliminate the necessity for compliance with the
requirement ... that there be a preliminary investigation and
finding of reasonable grounds to believe that further investi-
gation or prosecution of [Meese] ... was warranted." 907
F.2d at 1197. Meese was subjected to a more rigorous
application of the criminal law, then, because of both "the
extreme expansion of the resulting investigation" and "the
basis upon which the referral was made." Id. at 1201.
Neither of these conditions are present in the case before us:
the investigation by the IC never expanded beyond that
originally proposed by the Attorney General in her Applica-
tion, and the basis upon which the Attorney General made
her referral was never in dispute.
In Sealed Case we held that the "but for" requirement was
satisfied because the petitioner's tax returns were examined
for a period of nine years and "the ordinary examination of a
taxpayer for [such a] violation would have been substantially
less probing." 890 F.2d at 454. It does not appear that any
such less probing examination would have been made of
Weaver's conduct in the absence of the Act. As both the IC
and the DOJ point out, the principal allegations underlying
this matter, i.e., a senior White House official receiving
payments for using her influence to further the interests of
business clients of a friend and her participation in a conduit
scheme to solicit campaign contributions from a foreign na-
tional, would have been thoroughly investigated by the DOJ
in the absence of the Act.
* * * * * * * * * *
In sum, we agree with both the Department of Justice and
the Independent Counsel that the allegations that Alexis
Herman received illegal payments from business entities
wholly or partly controlled by Weaver, and that Weaver
and/or her companies served as a conduit for unlawful politi-
cal donations by Rahman, would have been similarly investi-
gated absent the IC statute. Weaver has not satisfied the
"but for" requirement under any of the theories that she
relies upon because she "was not subjected to an investigation
that [she] would not have been subjected to in the absence of
the Act." In re Nofziger, 925 F.2d 428, 446 (D.C. Cir., Spec.
Div., 1991) (per curiam).
But although Weaver was not investigated by the IC
differently than she would have been otherwise, in the ab-
sence of the Act she would not have incurred fees for review
and response to the IC's final report. Section 594 of the Act
requires that the independent counsel "file a final report with
the division of the court, setting forth fully and completely a
description of the work of the independent counsel...." 28
U.S.C. s 594(h)(1)(B). Absent the Act, federal "prosecutors
do not issue reports." In re North, 16 F.3d 1234, 1238 (D.C.
Cir., Spec. Div., 1994). Indeed, as we have observed before,
"[t]he filing of reports by Independent Counsels is 'a com-
plete departure from the authority of a United States Attor-
ney' and is 'contrary to the practice in federal grand jury
investigations.' " Id. (quoting In re Sealed Motion, 880 F.2d
1367, 1369-70 (D.C. Cir., Spec. Div., 1989) (per curiam)).
Therefore, we hold that the amount of $19,811.50 in reason-
able attorneys' fees that Weaver incurred for reviewing and
responding to the IC's final report is reimbursable.
Conclusion
For the reasons set forth above, we allow in part the
petition of Vanessa J. Weaver to the extent of ordering
reimbursement for attorneys' fees in the amount of
$19,811.50. We deny the balance of the petition as not
meeting the "but for" requirement of the Act, 28 U.S.C.
s 593(f)(1).
Cudahy, Circuit Judge, concurring in judgment.
The majority's disposition of this application is on all fours
with its treatment of the petition for attorneys' fees for Alexis
Herman. Similarly to former Secretary Herman, Vanessa
Weaver has attempted to justify payment of her attorneys'
fees based on our earlier opinions in In re Olson, 884 F.2d
1415 (D.C. Cir., Spec. Div., 1990) (per curiam) and In re
Donovan, 877 F.2d 982, 987 (D.C. Cir., Spec. Div., 1989).
Both opinions granted the requested attorneys' fees. In
Olson, we ruled that the "but for" test was satisfied because
the independent counsel investigation was held to be largely
duplicative of the Attorney General's preliminary investiga-
tion. 884 F.2d at 1420. In Donovan, this test was satisfied
because the restrictive provisions of the Ethics in Govern-
ment Act limited the ability of the Attorney General to
conduct an adequate preliminary investigation. 877 F.2d at
987.
For the reasons discussed in my separate opinion in In re
Herman, I believe that Olson and Donovan would be very
difficult to distinguish as a matter of first impression. But
Weaver is now part of a long list of unsuccessful fee petition-
ers, as to whom Olson and Donovan have been consistently
distinguished in a number of cases of relatively recent vin-
tage. See, e.g., In re Babbit, 290 F.3d 386, 393-94 (D.C. Cir.,
Spec. Div., 2002) (distinguishing Olson); In re Pierce (Sand-
ers Fee Application), 198 F.3d 899, 904 (D.C. Cir., Spec. Div.,
1999) (distinguishing Olson and Donovan); In re Pierce
(Kisner Fee Application), 178 F.3d 1356, 1360-61 (D.C. Cir.,
Spec. Div., 1999) (same); In re Pierce (Olivas Fee Applica-
tion), 178 F.3d 1350, 1354 (D.C. Cir., Spec. Div., 1999) (distin-
guishing Olson); In re Nofziger, 939 F.2d 1397, 1404 (D.C.
Cir., Spec. Div., 1991) (same); In re Nofziger, 925 F.2d 428,
439-71 (D.C. Cir., Spec. Div., 1991) (distinguishing Donovan).
But with respect, I do not believe attempts to distinguish
Olson and Donovan get to the heart of the matter.
To my mind, the "but for" test has not been satisfied here
for the simple reason that the allegations involved a generic
or common sort of wrongdoing crying out for investigation by
existing agencies. The case eventually resulted in the indict-
ment of Abdul Rahman, a foreign national, on multiple counts
of illegal campaign contributions, and the indictment specifi-
cally alleged that Weaver served as the conduit for these
illegal payments. As noted by the Department of Justice in
evaluating Weaver's petition, "from an objective standpoint,
we do not think that it can plausibly be contended that
investigation of this kind of conduct would not have been
pursued in the absence of the requirements of the Indepen-
dent Counsel statute." DOJ Evaluation, at 10; cf. In re
Pierce (Pierce Fee Application), 213 F.3d 713, 718 (D.C. Cir.,
Spec. Div., 2000) ("The convoluted nature of the corruption
involved and the high profile identity of the suspects and
defendants would no doubt have resulted in a complex and
lengthy investigation with or without the appointment of an
independent counsel." (quotations omitted)). Thus, the "but
for" test has not been satisfied.