In re: Alexis M. Herman, No. 98-0002 (D.C. Cir. 2002)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on May 26, 1998.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, As Amended Filed On: August 19, 2002 In re: Alexis M. Herman Division No. 98-2 (Herman Fee Application)
Before: Sentelle, Presiding, and Fay and Cudahy, Senior Circuit Judges.
ORDER The concurring opinion of Judge Cudahy in the above-captioned matter, originally filed on August 6, 2002, is withdrawn, and an amended concurrence by Judge Cudahy is hereby filed with the court.
Per Curiam For the Court: Mark J. Langer, Clerk by
Marilyn R. Sargent Chief Deputy Clerk
Richard D. Cudahy, Circuit Judge, concurring in the judgment:
I fully concur in the allowance of fees incurred to respond to the Independent Counsel's final report an expense which clearly would not have been incurred absent the unique requirements of the Ethics in Government Act calling for submission of a final report. As to the denial by the majority of the remainder of Secretary Herman's fee claims, although these might be debatable as a matter of first impression, they seem foreclosed by the recent precedents though not necessarily by older, and established, authority of this court. As the majority indicates, Secretary Herman makes two arguments: first, that the independent counsel's investigation here is largely duplicative of the preliminary investigation by the Department of Justice; and second, that the Act has imposed limitations of prosecutorial means on the Attorney General's preliminary investigation, which otherwise might have narrowed or obviated the independent counsel's inquiry. With respect to the first argument that the independent counsel's investigation is largely duplicative of the Attorney General's preliminary investigation Herman relies on In re Olson, 884 F.2d 1415, 1420 (D.C.Cir., Spec. Div., 1990) (per curiam). Independent Counsel Lancaster, in his evaluation of Herman's fee request, argues that the present case can be distinguished from In re Olson on the ground that here the "scope and depth" of the preliminary investigation were different from Lancaster's investigation, and that the "conduct" of the two investigations was different. The majority accepts this argument in denying Secretary Herman her fees. The reality is that preliminary investigations examine the same issues as investigations by the independent counsel, and there is necessarily a distinct similarity between the two procedures. The analytical distinction that must somehow be attempted, however, is between (a) the preliminary investigation, which is conducted for the limited purpose of determining whether a further inquiry is needed, and (b) the subsequent independent counsel investigation, which is the further inquiry itself. In recent years, our cases have increasingly emphasized the differences between the two procedures rather than the similarities. In re Olson was the first case to recognize and invoke the duplication theory to award attorneys' fees, though we have seldom invoked it since then. That case contained only a brief discussion of duplication as a basis for attorneys' fees, but that discussion (favoring the payment of fees) was premised on a snippet of legislative history that accompanied the passage of 593(f). Id. at 1420 (noting that "duplication" by the independent counsel of actions taken by the Attorney General during the preliminary investigation "is given as one instance where '[r]eimbursement may be warranted'" (quoting S. Rep. No. 97-496 (1982), reprinted in 1982 U.S.C.C.A.N. 3537, 3555 ) (alterations in original)). In re Olson argues against the result today by failing to include an explicit comparison of the "scope and breadth" of the preliminary investigation with the "scope and breadth" of the subsequent independent counsel investigation authorized by it. But, after granting an award of attorneys' fees, In re Olson goes on to quote further a somewhat contrary passage from the legislative history that "admonished [the court] to award reimbursement for attorneys' fees 'in only rare circumstances' for 'extraordinary expenses.'" 884 F.2d at 1420 (quoting S. Rep. No. 97-496). In reality, there is duplication in almost every case, although in most it is less than total. As a result, In re Olson is not an easy case to distinguish. But rather than address this tension, our subsequent cases have invoked the somewhat contradictory admonishments of a Senate committee report to consistently reject "duplication"arguments as a basis for recovery. See, e.g., In re Babbitt, 290 F.3d 386, 393-94 (D.C. Cir., Spec. Div., 2002) (rejecting duplication argument and stating that "[d]uplication by definition does not occur if the IC's investigation extends significantly beyond that of the DOJ's preliminary investigation" (citing In re Olson, 884 F.2d at 1420)); In re Pierce (Sanders Fee Application), 198 F.3d 899, 904 (D.C. Cir., Spec. Div., 1999) (rejecting fee application because the petitioner failed to "put forward evidence that the IC's investigation duplicated the preliminary investigation conducted by the Attorney General"); In re Pierce (Olivas Fee Application), 178 F.3d 1350, 1354 (D.C. Cir., Spec. Div., 1999) (stating that there can be no "serious argument" that duplication occurred because "the Independent Counsel's investigation ranged far beyond the preliminary investigation not only in depth but breadth"); In re Pierce (Kisner Fee Application), 178 F.3d 1356, 1360 (D.C. Cir., Spec. Div., 1999) (same); In re Nofziger, 939 F.2d 1397, 1404 (D.C. Cir., Spec. Div., 1991) (holding that only those fees resulting from a "substantial duplication of prior investigations" are reimbursable under 593(f) and distinguishing In re Olson). Whether this blanket approach, which leaves In re Olson in almost solitary preeminence, would be validated if a rigorous, case-by-case analysis were employed is questionable. On the second point, that the Act hampered the Attorney General's preliminary investigation, and therefore created the conditions for a more onerous independent counsel inquiry than would otherwise have been required, see In re Donovan, 877 F.2d 982, 987 (D.C. Cir., Spec. Div., 1989) (per curiam), there is also room for doubt. Both Independent Counsel Lancaster in his evaluation and the majority attempt to distinguish Donovan on the theory that the Attorney General in that case purportedly lacked the prosecutorial means to resolve an issue of credibility of a single witness, and this was the point on which the whole case turned. But it is not clear to me why in principle the denial of important prosecutorial methods should be a "but for" cause of an independent counsel's investigations if the prosecutorial challenge is simple (as was purportedly the case in Donovan) but not if the case is complicated by the testimony of "other critical witnesses," as the majority says is the case here. In any event, when the majority agrees with the Independent Counsel "that if the Attorney 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, . . ." it may be unwittingly making an entirely different point than it seems to be contemplating. For the point being made by the Independent Counsel's evaluation is that, if the Attorney General had all the "standard prosecutorial tools," the preliminary investigation would become as onerous as the resulting independent counsel investigation and would be fully as expensive, although by statute non-reimbursable. In any event, the allegations against Secretary Herman suggested a type of generic wrongdoing that is quite distinguishable from the charges, for example, against Secretary Babbitt, in whose case I dissented from the denial of the bulk of the fees. See In re Babbitt, 290 F.3d 386, 395 (D.C. Cir., Spec. Div., 2002) (Cudahy, J., concurring/dissenting). In Babbitt, the investigation proceeded only because the Attorney General could not abort it unless she found lack of criminal intent by clear and convincing evidence. See 28 U.S.C. 592(a)(2)(b)(ii). In addition, despite the extensive marshaling of investigative resources, Babbitt failed to result in a single criminal indictment. In contrast, the Herman investigation was much narrower in scope, yet it eventually resulted in the indictment of Abdul Rahman, a foreign national, based on preliminary evidence that Rahman transferred a large sum of money to Vanessa Weaver, a friend of Secretary Herman, at the same time that Weaver made donations totaling the same amount to various political organizations. These allegations are suggestive of the type of generic corruption that would likely have been taken quite seriously by the Department of Justice. The Department's evaluation of Secretary Herman's fee petition takes this position: Ms. Herman cannot plausibly argue that absent the Independent Counsel law the matter of Rahman's campaign contributions a matter involving allegedly unlawful political donations by a foreign national with ties to a high-level member of the White House staff would not have been investigated. Nor can Ms. Herman plausibly argue that Ms. Weaver's involvement in the matter would not have been looked into, given the allegation, ultimately reflected in the explicit terms of the grand jury's indictment, that Ms. Weaver and/or her companies served as the conduit for the illegal funds. From an objective standpoint, it seems clear that this matter, including the question of Ms. Weaver's involvement, would have been investigated even absent an Independent Counsel statute.
DOJ Evaluation, at 9; 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 an independent counsel." (quotations omitted)). Because Olson and Donovan are among the handful of cases that have resulted in an award of attorney's fees, they are relied upon in virtually every fee petition that comes before this court. As noted in my Babbitt dissent, our approach to 593(f) attorneys' fee requests has become quite rigid in recent years. See 290 F.3d at 396 & n.4 (discussing an "undeniable drift in our jurisprudence"). However, based on the nature of the allegations in the Herman investigation and the DOJ preliminary findings, there is really no need to distinguish Olson and Donovan, and we should curtail what has become a tiresome and legalistic exercise in favor of a judgment whether the allegations are of a generic or common sort, really inviting investigation in normal course by existing prosecutors.
Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, As Amended Filed On: August 19, 2002 In re: Alexis M. Herman Division No. 98-2 (Herman Fee Application)
Before: Sentelle, Presiding, and Fay and Cudahy, Senior Circuit Judges.
ORDER The concurring opinion of Judge Cudahy in the above-captioned matter, originally filed on August 6, 2002, is withdrawn, and an amended concurrence by Judge Cudahy is hereby filed with the court.
Per Curiam For the Court: Mark J. Langer, Clerk by
Marilyn R. Sargent Chief Deputy Clerk
Richard D. Cudahy, Circuit Judge, concurring in the judgment:
I fully concur in the allowance of fees incurred to respond to the Independent Counsel's final report an expense which clearly would not have been incurred absent the unique requirements of the Ethics in Government Act calling for submission of a final report. As to the denial by the majority of the remainder of Secretary Herman's fee claims, although these might be debatable as a matter of first impression, they seem foreclosed by the recent precedents though not necessarily by older, and established, authority of this court. As the majority indicates, Secretary Herman makes two arguments: first, that the independent counsel's investigation here is largely duplicative of the preliminary investigation by the Department of Justice; and second, that the Act has imposed limitations of prosecutorial means on the Attorney General's preliminary investigation, which otherwise might have narrowed or obviated the independent counsel's inquiry. With respect to the first argument that the independent counsel's investigation is largely duplicative of the Attorney General's preliminary investigation Herman relies on In re Olson, 884 F.2d 1415, 1420 (D.C.Cir., Spec. Div., 1990) (per curiam). Independent Counsel Lancaster, in his evaluation of Herman's fee request, argues that the present case can be distinguished from In re Olson on the ground that here the "scope and depth" of the preliminary investigation were different from Lancaster's investigation, and that the "conduct" of the two investigations was different. The majority accepts this argument in denying Secretary Herman her fees. The reality is that preliminary investigations examine the same issues as investigations by the independent counsel, and there is necessarily a distinct similarity between the two procedures. The analytical distinction that must somehow be attempted, however, is between (a) the preliminary investigation, which is conducted for the limited purpose of determining whether a further inquiry is needed, and (b) the subsequent independent counsel investigation, which is the further inquiry itself. In recent years, our cases have increasingly emphasized the differences between the two procedures rather than the similarities. In re Olson was the first case to recognize and invoke the duplication theory to award attorneys' fees, though we have seldom invoked it since then. That case contained only a brief discussion of duplication as a basis for attorneys' fees, but that discussion (favoring the payment of fees) was premised on a snippet of legislative history that accompanied the passage of 593(f). Id. at 1420 (noting that "duplication" by the independent counsel of actions taken by the Attorney General during the preliminary investigation "is given as one instance where '[r]eimbursement may be warranted'" (quoting S. Rep. No. 97-496 (1982), reprinted in 1982 U.S.C.C.A.N. 3537, 3555 ) (alterations in original)). In re Olson argues against the result today by failing to include an explicit comparison of the "scope and breadth" of the preliminary investigation with the "scope and breadth" of the subsequent independent counsel investigation authorized by it. But, after granting an award of attorneys' fees, In re Olson goes on to quote further a somewhat contrary passage from the legislative history that "admonished [the court] to award reimbursement for attorneys' fees 'in only rare circumstances' for 'extraordinary expenses.'" 884 F.2d at 1420 (quoting S. Rep. No. 97-496). In reality, there is duplication in almost every case, although in most it is less than total. As a result, In re Olson is not an easy case to distinguish. But rather than address this tension, our subsequent cases have invoked the somewhat contradictory admonishments of a Senate committee report to consistently reject "duplication"arguments as a basis for recovery. See, e.g., In re Babbitt, 290 F.3d 386, 393-94 (D.C. Cir., Spec. Div., 2002) (rejecting duplication argument and stating that "[d]uplication by definition does not occur if the IC's investigation extends significantly beyond that of the DOJ's preliminary investigation" (citing In re Olson, 884 F.2d at 1420)); In re Pierce (Sanders Fee Application), 198 F.3d 899, 904 (D.C. Cir., Spec. Div., 1999) (rejecting fee application because the petitioner failed to "put forward evidence that the IC's investigation duplicated the preliminary investigation conducted by the Attorney General"); In re Pierce (Olivas Fee Application), 178 F.3d 1350, 1354 (D.C. Cir., Spec. Div., 1999) (stating that there can be no "serious argument" that duplication occurred because "the Independent Counsel's investigation ranged far beyond the preliminary investigation not only in depth but breadth"); In re Pierce (Kisner Fee Application), 178 F.3d 1356, 1360 (D.C. Cir., Spec. Div., 1999) (same); In re Nofziger, 939 F.2d 1397, 1404 (D.C. Cir., Spec. Div., 1991) (holding that only those fees resulting from a "substantial duplication of prior investigations" are reimbursable under 593(f) and distinguishing In re Olson). Whether this blanket approach, which leaves In re Olson in almost solitary preeminence, would be validated if a rigorous, case-by-case analysis were employed is questionable. On the second point, that the Act hampered the Attorney General's preliminary investigation, and therefore created the conditions for a more onerous independent counsel inquiry than would otherwise have been required, see In re Donovan, 877 F.2d 982, 987 (D.C. Cir., Spec. Div., 1989) (per curiam), there is also room for doubt. Both Independent Counsel Lancaster in his evaluation and the majority attempt to distinguish Donovan on the theory that the Attorney General in that case purportedly lacked the prosecutorial means to resolve an issue of credibility of a single witness, and this was the point on which the whole case turned. But it is not clear to me why in principle the denial of important prosecutorial methods should be a "but for" cause of an independent counsel's investigations if the prosecutorial challenge is simple (as was purportedly the case in Donovan) but not if the case is complicated by the testimony of "other critical witnesses," as the majority says is the case here. In any event, when the majority agrees with the Independent Counsel "that if the Attorney 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, . . ." it may be unwittingly making an entirely different point than it seems to be contemplating. For the point being made by the Independent Counsel's evaluation is that, if the Attorney General had all the "standard prosecutorial tools," the preliminary investigation would become as onerous as the resulting independent counsel investigation and would be fully as expensive, although by statute non-reimbursable. In any event, the allegations against Secretary Herman suggested a type of generic wrongdoing that is quite distinguishable from the charges, for example, against Secretary Babbitt, in whose case I dissented from the denial of the bulk of the fees. See In re Babbitt, 290 F.3d 386, 395 (D.C. Cir., Spec. Div., 2002) (Cudahy, J., concurring/dissenting). In Babbitt, the investigation proceeded only because the Attorney General could not abort it unless she found lack of criminal intent by clear and convincing evidence. See 28 U.S.C. 592(a)(2)(b)(ii). In addition, despite the extensive marshaling of investigative resources, Babbitt failed to result in a single criminal indictment. In contrast, the Herman investigation was much narrower in scope, yet it eventually resulted in the indictment of Abdul Rahman, a foreign national, based on preliminary evidence that Rahman transferred a large sum of money to Vanessa Weaver, a friend of Secretary Herman, at the same time that Weaver made donations totaling the same amount to various political organizations. These allegations are suggestive of the type of generic corruption that would likely have been taken quite seriously by the Department of Justice. The Department's evaluation of Secretary Herman's fee petition takes this position: Ms. Herman cannot plausibly argue that absent the Independent Counsel law the matter of Rahman's campaign contributions a matter involving allegedly unlawful political donations by a foreign national with ties to a high-level member of the White House staff would not have been investigated. Nor can Ms. Herman plausibly argue that Ms. Weaver's involvement in the matter would not have been looked into, given the allegation, ultimately reflected in the explicit terms of the grand jury's indictment, that Ms. Weaver and/or her companies served as the conduit for the illegal funds. From an objective standpoint, it seems clear that this matter, including the question of Ms. Weaver's involvement, would have been investigated even absent an Independent Counsel statute.
DOJ Evaluation, at 9; 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 an independent counsel." (quotations omitted)). Because Olson and Donovan are among the handful of cases that have resulted in an award of attorney's fees, they are relied upon in virtually every fee petition that comes before this court. As noted in my Babbitt dissent, our approach to 593(f) attorneys' fee requests has become quite rigid in recent years. See 290 F.3d at 396 & n.4 (discussing an "undeniable drift in our jurisprudence"). However, based on the nature of the allegations in the Herman investigation and the DOJ preliminary findings, there is really no need to distinguish Olson and Donovan, and we should curtail what has become a tiresome and legalistic exercise in favor of a judgment whether the allegations are of a generic or common sort, really inviting investigation in normal course by existing prosecutors.
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