United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed March 3, 2006
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(THOMASSON 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 petition of Patsy
Thomasson 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
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ORDERED, ADJUDGED, and DECREED that the
petition of Patsy Thomasson for attorneys’ fees that she incurred
during the Independent Counsel’s investigation be denied.
PER CURIAM
For the Court:
Mark J. Langer, Clerk
By:
Marilyn R. Sargent
Chief Deputy Clerk
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed March 3, 2006
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(THOMASSON 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: Patsy Thomasson petitions this Court under
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 $31,273.51 that she claims were incurred
during and as a result of the investigation conducted by
independent counsel. Because we conclude that Thomasson has
not carried her burden of showing that her fees would not have
been incurred “but for” the requirements of the Act, we deny the
petition in its entirety.
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Background1
In May of 1993, William David Watkins (“Watkins”), who
was Assistant to the President for Management and
Administration, fired seven employees of the White House
Travel Office. Because of allegations of wrongdoing
surrounding the firings, various entities, including the Congress
and the General Accounting Office (“GAO”), undertook
investigations of the matter. Then-First Lady Hillary Rodham
Clinton (“Clinton”) was reportedly questioned during these
investigations concerning her role in the firings. She asserted
that she had little if any involvement. When questioned by the
GAO, Watkins also stated that Clinton was minimally involved.
These statements were put into doubt when drafts of a 1993
memo, written by Watkins and arguably contradicting his and
Clinton’s testimony, were produced by the White House. Patsy
Thomasson, Watkins’ deputy and the fee petitioner here,
apparently had some involvement in the preparation of the
memo. The GAO subsequently filed a criminal referral with the
Department of Justice (“DOJ”), suggesting that Watkins may
have made false statements when interviewed by the GAO.
Because Watkins was a covered person under the Independent
Counsel Act, see 28 U.S.C. § 591(b), the Attorney General
(“AG”) initiated a preliminary investigation pursuant to 28
U.S.C. § 592, in order to determine whether further investigation
was warranted. After making this determination, the AG
requested that this Court expand the Independent Counsel’s
(“IC” or “OIC”) jurisdiction to investigate, among other things,
whether Watkins or Clinton had made false statements to the
GAO regarding the Travel Office firings. As necessary to
1
Substantial portions of the Background and Analysis sections
have been adopted verbatim from In re Madison Guaranty Savings &
Loan (Watkins Fee Application), 375 F.3d 1211, 1212-13 (D.C. Cir.,
Spec. Div., 2004) (per curiam).
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resolve these matters, the IC also received jurisdiction to
investigate related felony allegations on the part of any other
person.
The IC then conducted an extensive investigation of the
matter. During this investigation, Thomasson was called
initially as a witness to testify before the grand jury, but during
her testimony was informed that her status had changed to that
of subject. Soon thereafter a warrant was executed to search her
apartment for relevant documents. Ultimately, however, the
OIC determined that no charges would be brought concerning
the matter. Pursuant to § 593(f)(1) of the Act, Thomasson now
petitions the court for reimbursement of attorneys’ fees in the
amount of $31,273.51 that she claims were incurred in defense
of the IC’s investigation. As directed by section 593(f)(2) of the
Act, we forwarded copies of Thomasson’s fee petition to the AG
and the IC and requested written evaluations of the petition. The
court expresses its appreciation to the IC and the AG for
submitting these evaluations, which we have given due
consideration in arriving at the decision announced herein.
Arguments
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.
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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 little dispute that Thomasson was a “subject” and
that her fees were incurred during the IC’s investigation. And
although the parties are in contention as to whether the
attorneys’ fees for which Thomasson seeks reimbursement are
adequately documented, we need not reach that issue as
Thomasson has not satisfied the “but for” requirement.
* * * * * * * * *
Thomasson argues that of the four circumstances under
which this court has previously found the “but for” requirement
to be satisfied, see, e.g., In re Pierce (Olivas Fee Application),
178 F.3d 1350 (D.C. Cir., Spec. Div., 1999) (per curiam), two
are present in her case. First, she claims that the IC’s
investigation duplicated that of prior investigations, in particular
those of the House of Representatives, the GAO, special counsel
Fiske, and the DOJ, in that her testimony before the “grand jury
was similar, in nature, to prior testimony that [she] gave before
various committees, etc.” Second, she claims that the firing of
the travel office employees was an employment decision and
that it is quite rare for an employment decision to be the subject
of a criminal investigation. It was only investigated, according
to Thomasson, because of the involvement of “two high ranking
officials,” Watkins and Clinton. Citing In re Nofziger, 925 F.2d
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428 (D.C. Cir., Spec. Div., 1991), she argues that she therefore
qualifies under the “but for” requirement because “as a high
public official, [she] was investigated in a circumstance where
a private citizen would not have been.”
In disputing Thomasson’s claim to “but for” status, the OIC
in its evaluation of her fee petition initially notes that as this
matter concerned allegations of obstruction of justice and
perjury, “given the facts disclosed in January 1996, [an
investigation] would have been conducted even in the absence
of the Act by the Department of Justice, or some other agency.”
The OIC then addresses Thomasson’s duplication-of-
investigations claim, noting that in fact the OIC never
investigated the Travel Office firings but rather investigated
possible false statements made by Watkins and Clinton during
the previous investigations. As such, asserts the OIC, the IC’s
investigation was not duplicative of the others. As for
Thomasson’s argument that she was investigated in a manner in
which a private citizen would not have been, the OIC notes that
she was deemed a subject of the investigation because she
provided inconsistent and doubtful testimony, and
“[i]nconsistent testimony under oath will attract the attention of
a prosecutor whether the source of the testimony is a high public
official or private citizen.”
As did the OIC, the DOJ in its evaluation begins by stating
that “the record indicates that the allegations here--concerning
alleged lies to Congress, the GAO, and other investigative
bodies--are clearly the sort of matters that would be investigated
in the normal course by the Department of Justice.” Turning to
Thomasson’s claim that she satisfies the “but for” requirement
because the OIC’s investigation was a duplication of those of
other federal agencies, the DOJ notes that under this court’s
prior decisions, the “but for” test is not met when an
investigation is duplicative of other federal criminal
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investigations but only when it duplicates that of the preliminary
investigation required by the Act. Thomasson has therefore
failed the test, asserts the DOJ, because she “does not claim that
the investigation as it pertained to her was duplicative of a
preliminary investigation required by the Independent Counsel
Act.”
As for Thomasson’s claim that she was investigated in a
manner in which a private citizen would not have been, the DOJ
cites this court’s decision in In re Babbitt (Babbitt Fee
Application), 290 F.3d 386, 391 (D.C. Cir., Spec. Div., 2002),
where it was noted that if the high profile identity of those
involved would have resulted in a similar investigation by the
DOJ, then the “but for” test is not met. The DOJ asserts that
Thomasson’s fee application makes only the general claim that
an employment decision would not normally be the subject of a
criminal investigation and “does not attempt to show that a
regular prosecutor, faced with these kinds of allegations in
similar circumstances, would not have looked into this matter.”
Analysis
Thomasson’s fee application does not pass the “but for”
test. In his fee application Watkins made claims very similar to
Thomasson’s in his bid to show that he fulfilled the “but for”
requirements. See Watkins, 375 F.3d at 1214. In rejecting his
claims, this court reasoned in similar fashion to that stated
below. Id. at 1215-16.
Thomasson’s argument that she fulfills the “but for” test
because the IC’s investigation duplicated prior inquiries is not
supported by this court’s prior decisions. Although in the past
we have awarded fees when the independent counsel’s
investigation constituted a substantial duplication of the
preliminary investigation of the DOJ, see In re Olson (Olson
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Fee Application), 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 omitted)); 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”), we have specifically held that it is only duplication of the
preliminary investigation by the DOJ that merits fee
reimbursement, and duplication by the IC of other investigations
is not sufficient. In re Pierce (Sanders Fee Application), 198
F.3d 899, 904 (D.C. Cir., Spec. Div., 1999) (per curiam); In re
Pierce (Seligman Fee Application), 201 F.3d 473, 476 (D.C.
Cir., Spec. Div., 2000) (per curiam). As the DOJ points out,
Thomasson makes no claim to any such duplication.
Thomasson’s further argument that she passes the “but for”
test because an ordinary citizen would never have been
subjected to an investigation such as she was is also without
merit. In In re Madison Guaranty Savings & Loan (Clinton Fee
Application), 334 F.3d 1119, 1126 (D.C. Cir., Spec. Div., 2003)
(per curiam), we rejected a similar argument, noting that the test
is not what would have happened if the fee petitioners “were
private citizens, but rather what would have happened if there
had been no independent counsel statute.” As both the IC and
the DOJ argue, the allegations here of obstruction of justice and
perjury would have been investigated with or without the
Independent Counsel statute.
Conclusion
The petition of Patsy Thomasson for reimbursement of
attorneys’ fees is denied for failure to satisfy the “but for”
requirement of the Act.