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 September 9, 2003
Division No. 94-2
IN RE: ALPHONSO MICHAEL ‘‘MIKE’’ ESPY
(HAAS 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 Ellen W.
Haas 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 petition is in part
well taken, it is hereby
ORDERED, ADJUDGED, and DECREED that the Unit-
ed States reimburse Ellen W. Haas for attorneys’ fees and
expenses that she incurred during the investigation by Inde-
2
pendent Counsel Donald C. Smaltz in the amount of
$15,386.44.
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 September , 2003
Division No. 94-2
IN RE: ALPHONSO MICHAEL ‘‘MIKE’’ ESPY
(HAAS 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
PER CURIAM: Ellen W. Haas 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 $31,099.66 that
she incurred during and as a result of the investigation
conducted by Independent Counsel Donald C. Smaltz (herein-
after IC or OIC). Because we find that Haas has established
her entitlement under the statutory criteria for reimburse-
ment of a portion of the fees we will, for the reasons set forth
more fully below, allow recovery of $15,386.44.
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 pur-
sued, inter alia, allegations of illegal gifts and gratuities to
USDA officials, the concealment of gratuities from federal in-
vestigators, and election law violations. Ultimately, the IC’s
investigation resulted in the indictment of 19 individuals and
business entities, 13 of whom were convicted of criminal mis-
conduct. One of those individuals was Richard Douglas, an
executive and lobbyist for Sun–Diamond Growers of Califor-
nia. The IC obtained a conviction of Douglas for giving
Espy gratuities, which was later overturned on venue
grounds. Espy was indicted on 39 counts for, inter alia,
accepting gifts in violation of his obligations as a public
official, but was acquitted on all counts.
Ellen W. Haas, the fee petitioner here, was the Under
Secretary of Agriculture for Food, Nutrition, and Consumer
Services under Secretary Espy. While investigating Espy on
allegations of receiving improper gratuities from persons
subject to regulation by the USDA, the IC looked into the
relationship between Haas, Douglas, and Douglas’s girlfriend
Patricia Kearney. Apparently, Haas’s office issued Kearney
a sole source consulting contract for approximately $25,000.
At about the same time Haas had social dinners on two
occasions with Kearney and Douglas for which Haas made
only a nominal contribution towards the bill. The IC subse-
quently began investigating Haas for possible gratuities of-
fenses, calling her before the grand jury. The IC became
concerned that Haas’s statements before the grand jury
concerning her contract with Kearney’s office and her possi-
ble receipt of gratuities were less than fully candid. Haas
was then informed that she was a subject of the IC’s investi-
gation. Nevertheless, she was never indicted.
3
Pursuant to section 593(f)(1) of the Act, Haas has now
petitioned this court for reimbursement of the attorneys’ fees
in the amount of $31,099.66 that she incurred during the IC’s
investigation. As directed by section 593(f)(2) of the Act, we
forwarded copies of Haas’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.
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 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 Haas was a ‘‘subject’’ of the IC’s investigation and
that her fees were incurred ‘‘during’’ the investigation. We
will therefore limit our discussion to the ‘‘but for’’ and ‘‘rea-
sonable’’ requirements.
4
* * * * * * * * * *
1. ‘‘But for’’
Haas claims that she would not have incurred attorneys’
fees ‘‘but for’’ the Act because the Independent Counsel’s
investigation subjected her to a more rigorous application of
the criminal law than is applied to other citizens. See In re
Meese, 907 F.2d 1192, 1201 (D.C. Cir., Spec. Div., 1990) (per
curiam); In re Sealed Case, 890 F.2d 451, 454 (D.C. Cir.,
Spec. Div., 1989) (per curiam). In support of this proposition
Haas notes that she incurred the fees in question because the
IC was ‘‘unrestrained by the considerations of finite resources
and competing law enforcement priorities,’’ and that ‘‘[i]t is
inconceivable that a U.S. Attorney’s office with limited time
and resources would have investigated whether [she] felo-
niously under-reimbursed Douglas.’’
In his evaluation, the IC disputes Haas’s contention that he
pursued her more aggressively than other prosecutors would
have done, pointing out that Haas was investigated not only
for her possible receipt of illegal gratuities but also because it
appeared that she had not been fully truthful in her grand
jury testimony concerning the matter. Citing In re Pierce
(Kisner Fee Application), 178 F.3d 1356, 1361 (D.C. Cir.,
Spec. Div., 1999) (per curiam), and In re North (Corr Fee
Application), 56 F.3d 261, 264 (D.C. Cir., Spec. Div., 1995)
(per curiam), the IC states that ‘‘investigations premised on
perjury or obstruction of an independent counsel’s investiga-
tion 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.’ ’’ Thus, argues the IC, an investigation of
Haas for perjury would have occurred no matter to whom she
had provided the testimony.
The IC further notes that Haas was investigated not only
because of her own conduct but also ‘‘because she was a
subordinate to Espy, the principal target of the investigation,
and a conduit between the Department of Agriculture and the
girlfriend of another target of the investigation, Douglas.’’
As a result, the IC argues, Haas would have certainly been a
witness to the events under investigation, and she ‘‘therefore
5
cannot establish that the fees she incurred for advice concern-
ing her involvement in the investigation would not have been
incurred but for the appointment of the Independent Coun-
sel.’’
We agree with Haas that it is unlikely that a regular
prosecutor, with the constraints of other cases and a finite
budget allocation, would have spent any significant amount of
time and money investigating the relatively small gratuities,
i.e., dinners, that Haas allegedly accepted. Nevertheless, we
also agree with the IC that it is probable that Haas would
have at least been called as a witness in this matter and that
her questionable grand jury testimony may indeed have
caught a regular prosecutor’s attention. Consequently, we
will make a deduction of fifty percent (50%) of the fees
requested after making the additional deductions listed below.
See In re Pierce (Abrams Fee Application), 190 F.3d 586, 593
(D.C. Cir., Spec. Div., 1999) (per curiam) (reduction of 25%
made to attorneys’ fees request ‘‘to reflect the indisputable
fact that some portion of the fees would have been incurred
with or without the passage of the Act’’).
2. ‘‘Reasonable’’
Before determining the precise amount of attorneys’ fees to
be reimbursed we must decide whether the fees and expenses
billed by Haas’s attorneys for her representation were rea-
sonable. In re Meese, 907 F.2d 1192, 1201 (D.C. Cir., Spec.
Div., 1990) (per curiam). The IC draws our attention to
several billing entries that he argues are not reimbursable
under our jurisprudence: a total of $135.30 for word process-
ing for December 1996, January 1997, March/April 1998, and
May 1998; and $102 for a meeting concerning a congressional
subcommittee hearing on January 28, 1997. We have indeed
previously found that ‘‘word processing TTT is an overhead
cost not separately reimbursable under the Act.’’ In re
Mullins (Tamposi Fee Application), 84 F.3d 1439, 1443 (D.C.
Cir., Spec. Div., 1996) (per curiam). Likewise we have found
that under the Act ‘‘fees incurred in connection with congres-
sional matters are not reimbursable.’’ In re North (Haskell
Fee Application), 74 F.3d 277, 282 (D.C. Cir., Spec. Div.,
6
1996) (per curiam). Consequently, we will make the deduc-
tions sought by the IC.
We will also make deductions for the January 1997 and
February/March 1997 entries for ‘‘local transportation.’’ Be-
cause we cannot assess the reasonableness of these entries as
they are not otherwise explained, they are not reimbursable.
In re North (Shultz Fee Application), 8 F.3d 847, 852–53
(D.C. Cir., Spec. Div., 1993) (per curiam). Therefore a total
deduction of $89.48 will be made for these entries.
CONCLUSION
Haas seeks reimbursement for attorneys’ fees in the
amount of $31,099.66. In accordance with the analysis set
forth above, we will make the following deductions from this
amount:
1. $135.30 for word processing.
2. $102 for congressional matters.
3. $89.48 for local transportation.
4. 50% deduction reflecting the court’s estimate of fees
that would have been incurred without the passage of the
Act.
For the reason set forth above, it is ordered that Haas be
awarded $15,386.44 in reasonable attorneys’ fees and ex-
penses.