United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed May 31, 2005
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(N ELVIS 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 Bayani C.
Nelvis 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 not well taken,
it is hereby
ORDERED, ADJUDGED, and DECREED that the
petition of Bayani C. Nelvis for attorneys’ fees that he incurred
during the Independent Counsel’s investigation be denied, save
for a single unique item.
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 May 31, 2005
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(N ELVIS 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: Bayani C. Nelvis 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
reimbursement of attorneys' fees in the amount of $18,850.00
that he claims were incurred during and as a result of the
investigation conducted by Independent Counsel. Because we
conclude that Nelvis has not carried his burden of establishing
all of the elements of his entitlement, we deny the petition
except for a single unique item.
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I. Background
In the mid-1990's, Paula Jones sued President William
Jefferson Clinton in federal district court in Arkansas, alleging
that during the 1980's while he was Governor there and she was
a state employee, he made a sexual advance towards her in
violation of federal and state law. (Hereinafter, Jones v.
Clinton.) In preparation for trial, Jones’s attorneys sought other
government employees towards whom the President may have
made sexual advances. To that end, in December 1997 the
attorneys subpoenaed Monica Lewinsky, an intern and then
employee of the Clinton White House. Although she and the
President had been having a sexual relationship since about
1995, Lewinsky executed an affidavit in response to the
subpoena denying any such relationship.
Also subpoenaed at the time was Linda Tripp, a friend of
Lewinsky’s. Ominously, Lewinsky told Tripp of the false
affidavit and that she intended to lie about her relationship with
the President if deposed. She also urged Tripp to lie about the
matter in her own deposition. Tripp in turn related these
comments to the office of Independent Counsel Kenneth W.
Starr (“IC” or “OIC”), who had been investigating allegations of
shady business deals on the part of Clinton and others while
Clinton was Governor of Arkansas. The IC also learned that
Lewinsky had spoken to the President about being subpoenaed,
and that an influential friend of the President’s was trying to find
Lewinsky a job. The IC related this information to the Attorney
General (”AG”), who then conducted a preliminary investigation
pursuant to § 591(a) of the Act to determine whether further
investigation was warranted. On January 16, 1998, the AG
determined that further investigation was indeed warranted, and
expanded the IC’s jurisdiction to include an investigation of
whether any criminal laws had been violated by any of those
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involved in the matter.
On January 17, 1998, the President was deposed in Jones v.
Clinton. During the deposition, Clinton “denied having a
‘sexual affair,’ a ‘sexual relationship’ or ‘sexual relations’ with
Lewinsky. He also testified that he had no specific memory of
being ‘alone’ with Lewinsky.” See ROBERT W. RAY, FIN A L
REPORT OF THE INDEPENDENT C OUNSEL, IN RE: MADISON
GUARANTY SAVINGS & LOAN ASSOCIATI O N , REGARDING
MONICA LEWINSKY AND OTHERS, 16 (2001).
In light of these developments, the IC set out to determine
the true nature of Lewinsky’s and the President’s relationship,
relying on what others had seen and heard. To that end, the IC
subpoenaed Bayani C. Nelvis, the fee petitioner here. Nelvis
was a Navy Chief Petty Officer assigned to the White House
during the Clinton administration. It appears that his main
function was tending to the personal needs of the President by
providing the President and his visitors with food and
refreshments, including serving the President his meals when he
ate in the Oval Office complex. In this role, according to
Nelvis, he “had nearly-unlimited personal access to the Oval
Office, the President’s personal dining room and the President’s
study.” He further states that during the time Lewinsky was
assigned to the White House he and she became acquainted and
later formed a friendship, and that he had observed Lewinsky in
the presence of the President in the Oval Office.
After Nelvis testified before the grand jury about relevant
information he had regarding the President’s relationship with
Lewinsky, the IC believed that certain of his testimony was
false. Nelvis was consequently informed that he was a target of
the IC’s investigation. Ultimately, however, the IC declined
prosecution and referred the matter to the Department of
Defense for further disposition. Pursuant to § 593(f)(1) of the
4
Act, Nelvis now petitions the court for attorneys’ fees in the
amount of $18,850.00 that he incurred in his defense of the IC’s
investigation.
II. 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 his
entitlement.” In re North (Reagan Fee Application), 94 F.3d
685, 690 (D.C. Cir., Spec. Div., 1996) (per curiam). The primary
area of contention among the parties involved concerns whether
or not Nelvis has satisfied the “but for” requirement.
We have in the past held that "[a]ll requests for attorneys'
fees under the Act must satisfy the 'but for' requirement of" the
Act. In re Sealed Case, 890 F.2d 451, 452 (D.C. Cir., Spec.
5
Div., 1989) (per curiam). On numerous occasions we have also
held that “the contemplation of the legislation is not that
subjects of independent counsel investigations will be
reimbursed for all legal fees, but only . . . for those legal fees
that would not have been incurred by a similarly-situated subject
investigated in the absence of the Act.” See In re Madison
Guar. Sav. & Loan (Clinton Fee Application), 334 F.3d 1119,
1123 (D.C. Cir., Spec. Div., 2003) (per curiam).
Nelvis claims that he passes the “but for” test for two
reasons. First, he argues that he would not have been
investigated but for the requirements of the IC statute because
the investigation of the Lewinsky matter, which led to the
investigation of him, only occurred as a result of the IC
investigation that was already under way. In other words, he is
claiming that if there had not been an ongoing investigation of
Clinton by the IC, then an investigation of the Lewinsky matter
would never have been undertaken because “no federal
prosecutor would have undertaken an investigation of adultery
or sexual relations between consenting adults in connection with
a private civil case.” Moreover, Nelvis notes that after
threatening him with prosecution the IC never indicated his
intent not to prosecute. A non-independent counsel prosecutor,
according to Nelvis, even if he or she had undertaken an
investigation of the matter, would have notified him when the
decision not to prosecute had been made, and therefore his
“counsel might ‘mitigate damages’ by not preparing for the
promised prosecution.”
Nelvis further claims that he passes the “but for” test in that
“there are unique factual circumstances specific to [his] status
that, but for the Independent Counsel Act, would have permitted
an early termination of the investigation or otherwise would not
have subjected [him] to the fees for which he petitions.” These
special circumstances, Nelvis asserts, involved “the practice
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within the Office of the United States Attorney for the District
of Columbia routinely to refer criminal cases involving military
service members to the respective services for disposition
pursuant to military jurisdiction.” As such referral would have
entitled him to appointed military counsel for representation,
Nelvis argues that an investigation of the matter by the U.S.
Attorney instead of an independent counsel “would have
substantially reduced or eliminated the attorneys’ fees incurred
by [him] in this case.” In support of his claim, Nelvis has
submitted the affidavits of two former military attorneys who
both state that in their experience it was the routine practice of
the U.S. Attorney for the District of Columbia “to refer cases
involving serious misconduct by military personnel committed
in the District of Columbia to the local military installation
commander for disposition.”
In response to these claims, the IC takes issue first with
Nelvis’s characterization of the IC’s investigation of the
Lewinsky matter as one which concerned only private
consensual sexual relations. The IC notes that the investigation
instead involved allegations of perjury and obstruction of
justice. And because these are crimes routinely investigated and
prosecuted by the Department of Justice, the IC asserts that the
matter would have been investigated even in the absence of the
IC statute.
The IC also disputes Nelvis’s claim that, had a regular
prosecutor handled the matter, his case would have been referred
to the military for prosecution and consequently no attorneys’
fees would have been incurred for his defense. First, the IC
argues that it is “unclear that Navy personnel are suspected of
perjuring themselves during grand jury investigations with
sufficient frequency that the U.S. Attorneys’ office could have
established a usual procedure.” But in any event, according to
the IC, Nelvis’s involvement was initially as a witness, as the IC
7
believed he possessed relevant and important evidence
concerning the matter. It was only after “the OIC prosecutors
believed that Nelvis had chosen to lie and he failed to produce
required evidence” that he was made a subject, and the IC
asserts that “Nelvis has offered no evidence that such conduct
would ever, let alone routinely, be immediately transferred to
the Navy for further disposition.”
In its evaluation, the DOJ also argues that Nelvis has not
passed the “but for” test. Like the IC, the DOJ asserts that
Nelvis mischaracterizes the nature of the Lewinsky investigation
when he claims that no ordinary prosecutor would have
undertaken it because it was only a matter of adultery or sexual
relations between consenting adults in connection with a private
civil matter. The DOJ states that instead the IC’s investigation
of the matter concerned serious and credible allegations of
perjury and obstruction of justice, and that with this in mind,
“Nelvis has failed to meet his burden of demonstrating that there
would have been no investigation of the underlying matter in the
absence of the Independent Counsel Act.”
As to Nelvis’s claim that an ordinary prosecutor would have
transferred his case to the military authorities for disposition,
thus avoiding attorneys’ fees, the DOJ implies that a regular
federal prosecutor would in fact have declined such a transfer.
The DOJ makes this assertion based on Nelvis having “played
a relatively small part in a much larger investigation into
potential wrongdoing by the President, Ms. Lewinsky, and
others, regarding matters not associated with the military.”
* * * * * * * * *
After considering the positions of the parties we find that
Nelvis has not satisfied the “but for” requirement. With respect
to his first claim that in the absence of the Act the investigation
of the Lewinsky matter would never have taken place because
8
it involved only allegations of sexual relations between
Lewinsky and the President, we had an opportunity to detail the
seriousness of the charges involved when we considered the fee
reimbursement request of Lewinsky herself:
the underlying allegations were that Lewinsky lied under
oath in a pending lawsuit against the President of the United
States; that she was planning to lie again and had
encouraged others to lie; that she had spoken to the
President and an associate of the President about the matter;
and, at least implicitly, that the President and his associate
may themselves have been involved in the wrongdoing.
In re Madison Guar. Sav. & Loan (Lewinsky Fee Application),
352 F.3d 437, 445 (D.C. Cir., Spec. Div., 2003) (per curiam).
Nelvis has not addressed these much more weighty allegations,
and therefore he has not met his burden of showing that an
investigation of them would not have been undertaken in the
absence of the independent counsel statute.
Nelvis has also not met his burden of showing that a regular
federal prosecutor in the District of Columbia would have
transferred his case to the military authorities for disposition. It
appears that the IC believed that Nelvis was withholding
important information concerning the Lewinsky-Clinton
relationship, and Nelvis was therefore made a subject and
threatened with prosecution in order to induce him to cooperate.
Transferring of the case to the military, at that particular stage
of the investigation, would not have been a logical step, and
there is no apparent reason why any non-independent counsel
would not have handled the matter in the same manner.
Therefore Nelvis would have incurred the attorneys’ fees that he
did no matter who conducted the investigation.
* * * * * * * * *
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Nevertheless, we find that Nelvis is eligible for the
attorneys’ fees he incurred for reviewing and responding to the
IC’s Final Report. Section 594 of the Act imposes the
requirement that the IC “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. §
594(h)(1)(B). The Act further allows that the court make the
Report available to those named in it for their review and
comment. 28 U.S.C. § 594(h)(2). Consequently, in In re Olson,
884 F.2d 1415, 1421 (D.C. Cir., Spec. Div., 1989) (per curiam),
we observed that “attorneys’ fees incurred by the subject of an
investigation in the preparation of comments to the Report are
reimbursable where they are reasonably related to the
substantive defense.” Nelvis is therefore eligible for
reimbursement of fees spent on this task. The billing records
indicate that his attorney spent 3.5 hours to “Review IC Final
Report on Monica Lewinsky investigation;” consequently,
Nelvis is entitled to reimbursement in the amount of $700. (3.5
hours @ $200 per hour = $700.)
Conclusion
For the reasons set forth above, we allow the petition for
fees of Bayani C. Nelvis only to the extent of $700.00. Except
as herein specifically allowed, the petition is denied.