Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed August 15, 2003
Division No. 94-2
IN RE: ALPHONSO MICHAEL ‘‘MIKE’’ ESPY
(BLACKLEY FEE APPLICATION)
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
–————
Before: SENTELLE, Presiding, FAY and REAVLEY, Senior
Circuit Judges.
ORDER
This matter coming to be heard and being heard before the
Special Division of the Court upon the application of Ronald
Blackley, Jr. 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. § 591 et seq. (2000), 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 Ronald Blackley, Jr. for attorneys’ fees he incurred
2
during the investigation by Independent Counsel Donald C.
Smaltz be denied.
PER CURIAM
For the Court:
Mark J. Langer, Clerk
By:
Marilyn R. Sargent
Chief Deputy Clerk
Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed August 15, 2003
Division No. 94-2
IN RE: ALPHONSO MICHAEL ‘‘MIKE’’ ESPY
(BLACKLEY FEE APPLICATION)
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
–————
Before: SENTELLE, Presiding, FAY and REAVLEY, Senior
Circuit Judges.
ON APPLICATION FOR ATTORNEYS’ FEES
Opinion for the Special Court filed PER CURIAM.
PER CURIAM: Ronald Blackley, Jr. petitions this Court under
section 593(f) of the Ethics in Government Act of 1978, as
amended, 28 U.S.C. §§ 591–599 (2000) (the Act), for reim-
bursement of attorneys’ fees in the amount of $25,827.49 that
he claims to have incurred during and as a result of the
investigation conducted by Independent Counsel Donald C.
Smaltz (hereinafter IC or OIC). Because we conclude that
Blackley, Jr. has not carried his burden of showing that the
fees were incurred by him and would not have been incurred
but for the requirements of the Act, we deny the petition.
2
BACKGROUND
Donald C. Smaltz was appointed independent counsel in
September 1994 to investigate allegations of improper gratui-
ties received by Secretary of Agriculture Mike Espy from
Tyson Foods, Inc., and other organizations and individuals
having business before the U.S. Department of Agriculture
(USDA). The investigation lasted several years and looked
into, inter alia, violations regarding the provision of gifts and
gratuities to USDA officials, the concealment of gratuities
from federal investigators, and election law violations. Ulti-
mately, the IC’s investigation resulted in the indictment of 19
individuals and business entities, 13 of whom were convicted
of criminal misconduct. Espy was indicted on 39 counts for,
inter alia, accepting gifts in violation of his obligations as a
public official.
Ronald Blackley, Jr., the fee petitioner here, is the son of
Espy’s former chief of staff, Ronald Blackley, Sr. While
investigating Espy on allegations of receiving improper gratu-
ities from persons subject to regulation by the USDA, the IC
looked into the case of a Mississippi farmer who had allegedly
received preferential treatment from the USDA through the
efforts of Blackley, Sr. The farmer’s spouse subsequently
sent Blackley, Jr. a check for $1000 as a high school gradua-
tion present. When called before the grand jury by the IC,
Blackley, Jr. at first denied receiving the check but later
testified that it was possible that he had received such a gift.
The IC then advised him that he was a subject of investiga-
tion regarding possible perjury. He was never indicted.
Blackley, Jr., pursuant to section 593(f)(1) of the Act, has
now petitioned this court for reimbursement in the amount of
$25,827.49 for the attorneys’ fees he claims to have incurred
during the IC’s investigation. As directed by section 593(f)(2)
of the Act, we forwarded copies of Blackley, Jr.’s fee petition
to the Attorney General and the IC and requested written
evaluations of the petition. The court expresses its apprecia-
tion to the IC and the Attorney General for submitting these
evaluations, which we have given due consideration in arriv-
ing at the decision announced herein.
3
DISCUSSION
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. § 593(f)(1). Accordingly, in order to obtain an
attorneys’ fees award under the statute, a petitioner must
show, inter alia, that he ‘‘incurred’’ the fees being sought for
reimbursement and that the fees would not have been in-
curred ‘‘but for’’ the requirements of the Act. The petitioner
‘‘bears the burden of establishing all elements of his entitle-
ment.’’ In re North (Reagan Fee Application), 94 F.3d 685,
690 (D.C. Cir., Spec. Div., 1996) (per curiam). For the
reasons stated below, we find that Blackley, Jr. fails to
establish the ‘‘incurred by’’ and ‘‘but for’’ elements and is
therefore not entitled to an attorneys’ fees award.
A. ‘‘Fees Incurred By’’
Both the IC and the DOJ argue as a preliminary matter
that Blackley, Jr. is not eligible for an award of fees because
it was his father and not he who was liable for the fees. Both
note that it was Blackley, Sr. who entered into the fee
arrangement to provide for his son’s legal services, and that
all the invoices submitted for reimbursement were addressed
to Blackley, Sr. The Act states that this Court ‘‘upon the
request of an individual TTT may TTT award reimbursement
for those reasonable attorneys’ fees incurred by that individu-
al during that investigation.’’ 28 U.S.C. § 593(f)(1). The IC
and the DOJ both cite to Special Division cases for the
proposition that under this provision of the Act an individual
may not seek reimbursement for fees which he has no obli-
gation to pay. See In re North (Langton and Mason Fee
Application), 32 F.3d 609 (D.C. Cir., Spec. Div., 1994) (per
4
curiam); In re North (Watson Fee Application), 32 F.3d 607
(D.C. Cir., Spec. Div., 1994) (per curiam); In re North (Gadd
Fee Application), 12 F.3d 252 (D.C. Cir., Spec. Div., 1994)
(per curiam); In re Olson, 884 F.2d 1415 (D.C. Cir., Spec.
Div., 1989) (per curiam); In re Donovan, 877 F.2d 982 (D.C.
Cir., Spec. Div., 1989) (per curiam). The DOJ argues that the
fees ‘‘appear to have been wholly incurred by his father,’’
while the IC concludes that ‘‘Blackley, Jr. has never paid a
fee and has no legal liability for the fees and expenses
incurred.’’
We find that the IC and the DOJ are correct in arguing
that Blackley, Jr. is not entitled to reimbursement of attor-
neys’ fees expended in his defense in this matter because the
fees were not, pursuant to the Act, ‘‘incurred by’’ him. The
first sentence of the retainer agreement between Blackley,
Sr. and the provider of the legal services states that ‘‘Ron
Blackley, Sr. TTT hereby retains the services of the Jacobovitz
Law Firm TTT to provide legal services for Ron Blackley, Jr.’’
Furthermore, all of the invoices were addressed to Blackley,
Sr. In In re Donovan, 877 F.2d 982, 991 (D.C. Cir., Spec.
Div., 1989), the Court, in reference to the Act, stated that
‘‘[w]e interpret TTT the term ‘incurred’ to mean actual fees
which the subject paid or for which he is liable.’’ See also In
re Olson; In re North (Gadd Fee Application), 12 F.3d at 255
(‘‘an individual seeking fees must have actually paid the fees
or be legally liable for them.’’). There is no evidence present-
ed by Blackley, Jr. showing either that he paid the fees or
that he was legally liable to do so. Therefore he is not
entitled to any fee reimbursement.
B. Fees Not Incurred ‘‘But For’’ the Requirements of the
Act
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
5
Fee Application), 59 F.3d 184, 188 (D.C. Cir., Spec. Div.,
1995) (per curiam) (quoting In re North (Dutton Fee Applica-
tion), 11 F.3d 1075, 1079 (D.C. Cir., Spec. Div., 1993) (per
curiam)). 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 that he
would have incurred as a result of an investigation by the
Department of Justice. 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 authori-
ties–‘had the case been handled by the Department 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).
Nonetheless, we have found that petitioners qualify for an
award of fees in the face of the but-for test in at least four
circumstances:
1. When the independent counsel’s investigation sub-
stantially constituted duplication of the preliminary in-
vestigation conducted by the Department of Justice.
Dutton, 11 F.3d at 1080; In re Olson, 884 F.2d at 1420.
2. When the petitioning subject has been ‘‘prejudiced
by the Department of Justice’s failure to comply with the
substantial protective features of the Act.’’ In re Nofzig-
er, 925 F.2d 428, 438 (D.C. Cir., Spec. Div., 1991) (per
curiam).
3. When in the absence of the requirements of the Act
‘‘ ‘the case could have been disposed of at an early stage
of the investigation,’ ’’ without subjecting the petitioner
to the conditions that led to his incurring the fees sought.
In re Segal (Sagawa Fee Application), 151 F.3d 1085,
1089 (D.C. Cir., Spec. Div., 1998) (per curiam) (quoting
In re Nofziger, 925 F.2d at 438).
4. Not wholly distinct from category (3), supra, when
‘‘high public officials [or derivative subjects] were investi-
gated under the Act in circumstances where private
6
citizens would not [have been] investigated.’’ In re Nof-
ziger, 925 F.2d at 442; accord Dutton, 11 F.3d at 1080.
Blackley, Jr. argues in effect that his case falls into catego-
ries (1) and (4), i.e., that the IC’s investigation was duplicative
of the prior investigations of the DOJ and that he was
investigated in circumstances where a private citizen would
not have been.
Investigation duplication. Without further explanation
Blackley, Jr. asserts that the ‘‘but for’’ requirement is satis-
fied in his case because ‘‘the independent counsel’s investi-
gation was duplicative in many respects to the prior investi-
gations of the Department of Justice, which had declined
prosecution of Blackley Sr. The testimony elicited from
Blackley Jr. before the OIC grand jury and at trial was
similar, in nature, to prior investigations.’’
In his evaluation, the IC points out that Blackley, Jr.
mentions nothing about the investigations that he claims the
IC duplicated. The IC does note that the IG’s office of both
the USDA and the USAID investigated Blackley, Sr. prior to
the IC, but that these were not ‘‘preliminary investigations’’
under the Act, and in any event these investigations had to do
with Blackley Jr.’s father, not with him. Consequently, the
IC argues that Blackley, Jr. cannot claim that he incurred
duplicative expenses because of duplication of investigations.
We have in the past awarded fees when the independent
counsel’s investigation constituted a substantial duplication of
the preliminary investigation of the DOJ. See In re Olson,
884 F.2d at 1420 (IC’s investigation ‘‘necessarily duplicated
ground that had been covered by the preliminary investiga-
tion of the Department of Justice’’); In re Perry, 892 F.2d
1073, 1074 (D.C. Cir., Spec. Div., 1990) (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’’). But we have specifically
held that it is only duplication of the preliminary investigation
by the DOJ that merits fee reimbursement, and so duplica-
tion by the IC of other investigations is not relevant to this
issue. See In re Pierce (Sanders Fee Application), 198 F.3d
7
899, 904 (D.C. Cir., Spec. Div., 1999) (per curiam), and In re
Pierce (Seligman Fee Application), 201 F.3d 473, 476 (D.C.
Cir., Spec. Div., 2000) (per curiam). Consequently, although
Blackley, Jr. argues that the ‘‘but for’’ requirement is satis-
fied here because ‘‘the independent counsel’s investigation
was duplicative in many respects to the prior investigations of
the Department of Justice,’’ there is no evidence that the IC’s
investigation was duplicative of the DOJ’s preliminary investi-
gation, and therefore the ‘‘but for’’ requirement has not been
satisfied.
Investigated where private citizen would not have been.
Blackley, Jr. also argues that his case fulfills the ‘‘but for’’
requirement because his father
as a high public official, was investigated in a circum-
stance where a private citizen would not have been TTTT
He had already been investigated previously. This is a
category of conduct that was only examined because of
the fact that the OIC was interested in high-ranking
officialsTTTT The threat of being a ‘‘subject’’ with the
ramifications of a possible indictment was a situation that
a private citizen would likely not have encountered be-
cause of the nature of the investigation. Thus, Blackley
Jr. incurred these extraordinary expenses when a private
citizen would not have.
Concerning this argument that a private citizen would not
have been investigated as Blackley, Sr. was, the IC states
that ‘‘Blackley, Jr. became a subject because he was suspect-
ed of having lied to the grand jury that was investigating his
father – a fact that has no relationship whatsoever to the
strictures of the Act or his father’s status.’’ Citing to In re
Pierce (Kisner Fee Application), 178 F.3d 1356, 1361 (D.C.
Cir., Spec. Div., 1999), the IC asserts that ‘‘investigations
premised on perjury or obstruction of an independent coun-
sel’s investigation are ones that do not meet the ‘but for’ test.
This is so because perjury and obstruction are crimes ‘not
uniquely related to the Act.’ ’’
The DOJ notes in its evaluation that the burden is on the
fee applicant to demonstrate that his case satisfies the ‘‘but
for’’ prerequisite and that Blackley, Jr. has not done so. The
8
DOJ further notes that the IC’s investigation uncovered
significant misconduct, and suggests that it would have inves-
tigated this matter in the absence of the Act.
We agree with the IC and the DOJ that Blackley, Jr. has
not satisfied the ‘‘but for’’ element here. Blackley, Jr. ap-
pears to be arguing that his father was investigated only
because the IC had been appointed to look into misconduct at
the USDA, and that if the IC had not been so appointed then
neither his nor his father’s conduct would have been investi-
gated. First, we were recently confronted with a similar
argument in another fee petition concerning the IC’s investi-
gation. See In re Espy (Kearney Fee Application), 319 F.3d
526 (D.C. Cir., Spec. Div., 2003) (per curiam). In finding that
that fee petitioner had not satisfied the ‘‘but for’’ require-
ment, we noted that Independent Counsel Smaltz ‘‘produced
evidence, and indeed probable cause, to believe that a cabinet
secretary had received, and a businessman had paid, illegal
gratuities. In the absence of the Act, the DOJ would in all
probability have investigated Espy for allegedly receiving
gratuities and [the businessman] for allegedly giving them.’’
Id. at 531. And in all probability Blackley, Sr., as Espy’s
chief of staff, and consequently Blackley, Jr., would have been
similarly investigated by the DOJ as well.
Second, Blackley, Jr.’s lying to a federal grand jury is
conduct that is routinely investigated by the federal authori-
ties. In Kisner, the fee applicant was also investigated for
lying to a grand jury (as well as to the Congress). We stated
in that case that ‘‘[i]nvestigation and potential prosecution of
Kisner by the IC for perjury does not satisfy the ‘but for’
requirement since it is a type of prosecution that is not
uniquely related to the Act.’’ 178 F.3d at 1361 (citation and
internal quotation marks omitted). Consequently, the investi-
gation of Blackley, Jr. for perjury also does not satisfy the
‘‘but for’’ requirement.
CONCLUSION
The petition of Ronald Blackley, Jr. for reimbursement of
attorneys’ fees is denied for failure to comply with the
9
‘‘incurred by’’ and ‘‘but for’’ requirements of 28 U.S.C.
§ 593(f)(1).