Nofziger, In re

• Citation: 956 F.2d 287
• Decision Date: 14 February 1992
• Docket Number: No. 87-1,87-1
• Parties: Ethics in Government Act of 1978, as Amended. In re Franklyn C. NOFZIGER, Mark A. Bragg. Div.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 287

956 F.2d 287

294 U.S.App.D.C. 1

Ethics in Government Act of 1978, as Amended.

In re Franklyn C. NOFZIGER, Mark A. Bragg.

Div. No. 87-1.

United States Court of Appeals, District of Columbia Circuit.

Feb. 14, 1992.

As Amended March 11, 1992.

Richard Ben-Veniste and Peter D. Isakoff, for petitioner, were on the Application for Attorneys' Fees and supporting documents.

Stuart M. Gerson, Asst. Atty. Gen., Patricia M. Bryan, Deputy Asst. Atty. Gen., William Kanter and Thomas M. Bondy, Attys., Dept. of Justice, filed Comments on the Application for Attorneys' Fees.

Before MacKINNON, Presiding, and BUTZNER and PELL, Senior Circuit Judges.

PER CURIAM:

This case involves a petition by Mark A. Bragg for reimbursement of his attorneys' fees incurred in defense of one count charging him as an aider and abettor to Franklyn C. Nofziger who was charged with violation of 18 U.S.C. § 207(c). Bragg was acquitted. The Special Division holds that it is without jurisdiction to award fees incurred during the trial and that petitioner does not satisfy the but for requirement of 28 U.S.C. § 593(f) for payment of fees incurred during the pre-indictment investigation.

I. BACKGROUND

James C. McKay was appointed as Independent Counsel under the Ethics in Government Act, 28 U.S.C. § 591 et seq. (the "Ethics Act"), to investigate Franklyn C. Nofziger, former Assistant to the President for Political Affairs. Indictments were returned charging Nofziger with four counts of violating 18 U.S.C. § 207(c) (1982) ¹ for making prohibited "communications" "to the department ... in which he [had] served as an officer...." ² Count Two of the Indictment charged Nofziger with a violation of 18 U.S.C. § 207(c) (1982) and in the same count Mark A. Bragg, a partner of Nofziger in "Nofziger and Bragg Communications," was indicted under 18 U.S.C. § 2 ³ for aiding and abetting the alleged communication offense by Nofziger. ⁴ Bragg was a private citizen who, except for military service, had never been employed by the government.

The trial resulted in the conviction of Nofziger on Counts One, Three and Four and in the acquittal of both Nofziger and Bragg on Count Two. On appeal the convictions of Nofziger were reversed on the ground that the indictments were invalid. United States v. Nofziger, 878 F.2d 442 (D.C.Cir.), cert. denied, 493 U.S. 1003, 110 S.Ct. 564, 107 L.Ed.2d 559 (1989). Subsequently both defendants, notwithstanding that they had been indicted, applied to the Special Division under the Act for reimbursement of their attorneys' fees incurred in the investigation and trial.

The Ethics Act provides two requirements for reimbursement of attorneys' fees; i.e., (1) that "no indictment is brought against ... the subject of the investigation," and (2) that reimbursement of "reasonable attorneys' fees ... [be limited to fees] incurred ... during that investigation which would not have been incurred but for the requirements of [the Ethics Act]." (Emphasis added). ⁵

                On Nofziger's Fee Application the Special Division decided that the "no indictment" requirement of the statute was obviated by the invalid indictment, but that Nofziger failed to satisfy the second requirement, the "but for" requirement of the Act.   Therefore, he was not entitled to reimbursement for his fees.  In re Nofziger, 925 F.2d 428, reh'g denied, 938 F.2d 1397 (D.C.Cir.1991).   The no-indictment ruling is equally applicable to Bragg
                

This case involves Bragg's Application for Attorneys' Fees and Costs of (1) $105,507.26 incurred in post-indictment fees allegedly incurred during the trial and pre-trial period from July 16, 1987 until February 11, 1988 when Bragg's trial concluded with his acquittal, and (2) $30,682.30 incurred in connection with the pre-indictment investigation conducted from January 1987 through July 16, 1987 when the indictment was returned.

II. DISCUSSION

A. Post-Indictment Attorneys' Fees.

Bragg's application includes a request for his trial and pretrial, i.e., post-indictment fees. The statute, however, only authorizes the Special Division to "award reimbursement for those reasonable attorneys' fees incurred by that individual during that investigation." (Emphasis added). ⁶ Since the statute only contemplated awarding reimbursement of fees if no indictment was brought, it follows that Congress never considered waiving sovereign immunity for the payment of any post-indictment attorneys' fees. The court is therefore without jurisdiction to award reimbursement of the $105,507.26 in trial and pre-trial attorneys' fees incurred after the investigation terminated upon the return of the indictment.

1. Waiver of Sovereign Immunity.

The right to recover attorneys' fees against the government is based on a waiver of the sovereign immunity of the United States and that waiver is strictly construed against the applicant and in favor of the sovereign. Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2702, 69 L.Ed.2d 548 (1981) ("[T]his Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." (citations omitted)). We must strictly construe a waiver of sovereign immunity. See United States v. Mottaz, 476 U.S. 834, 851, 106 S.Ct. 2224, 2234, 90 L.Ed.2d 841 (1986) ("a waiver of sovereign immunity cannot be lightly implied" (citations omitted)); Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3277, 77 L.Ed.2d 938 (1983); McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951); Eastern Transportation Co. v. United States, 272 U.S. 675, 686, 47 S.Ct. 289, 291, 71 L.Ed. 472 (1927); In re Nofziger, 925 F.2d 428, 433 (D.C.Cir.1991); In re Donovan, 877 F.2d 982, 994 (D.C.Cir.1989); In re Olson, 884 F.2d 1415, 1428 (D.C.Cir.1989); In re Jordan, 745 F.2d 1574, 1576 (D.C.Cir.1984).

The attempt to enlarge the statute and authorize reimbursement of attorneys' fees beyond those incurred during the "investigation" also falls victim to the legal principle that "when a cause of action has been created by a statute which expressly provides the remedies for vindication of the cause other remedies should not readily be implied." Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 720, 87 S.Ct. 1404, 1408, 18 L.Ed.2d 475 (1967) (a meticulous statutory remedy is exclusive of any other mandatory remedy); United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979) ("Courts should not extend the waiver [of sovereign immunity] beyond that which Congress intended."); Eastern Transp. Co. v. United States, 272 U.S. 675, 686, 47 S.Ct. 289, 291, 71 L.Ed. 472 (1927) ("A Court [should not] enlarge [the Government's] liability to suit beyond what the language requires."); Philip v. Nock, 17 Wall. 460, 21 L.Ed. 679 (1873) (when the statute prescribes "actual damages sustained" the amount recoverable is "regulated by that standard"). Thus, we deny the

[294 U.S.App.D.C. 4] petition for reimbursement of $105,507.26 in post-indictment fees and only consider the application for reimbursement of the $30,682.30 incurred pre-indictment during the "investigation" by Independent Counsel.

B. Bragg's "Investigation" Fees.

1. Aiding and abetting the substantive offense.

With respect to his attorneys' fees incurred during the "investigation" Bragg contends that, notwithstanding the Special Division's denial of Nofziger's application for fees, his application stands on a different basis. Allegedly because in the absence of the Ethics Act he would not have been investigated and prosecuted by the Department of Justice because of his contention that he could not properly be charged under § 207(c) as he was not a former government official and only former government officials fall within the coverage of § 207(c).

It is correct that the specific statutory prohibitions of section 207(c) are limited to officers and employees covered by the Ethics Act ⁷ and that Bragg was not a covered officer or employee. However, he was not charged with violating section 207(c). He was charged, under 18 U.S.C. § 2, ⁸ with aiding and abetting Nofziger's violation of section 207(c); i.e., he was not charged under subsection (c) with making a prohibited "communication" but with aiding and abetting Nofziger to do so.

Bragg contends that section 207(c), which is applicable only to former government employees, could not legally be utilized against "aiders and abettors" who had never been government employees. Ben-Veniste Affidavit at 7. However, the law is well settled that one may be found guilty of aiding and abetting another individual in his violation of a statute that the aider and abettor could not be charged personally with violating. The leading case is Coffin v. United States, 156 U.S. 432, 447, 15 S.Ct. 394, 400, 39 L.Ed. 481 (1895). That case, decided years ago, held, that the offense of aiding or abetting officers of a national bank in violating a national bank statute, that only applied to bank officials, may be committed by persons who are not officers of the bank. The "every person" provision of the aiding and abetting section of the National Bank Act, as applied in Coffin, is substantially the same as section 2(a) of title 18 which applies to "[w]hoever ... aids or abets...." (Emphasis added). Compare Revised Stat. § 5209 at 1007 (2d Ed.1878) with 18 U.S.C. § 2(a) (65 Stat. 717).

The Ninth Circuit recently held to the same effect: United States v. Smith, 891 F.2d 703, 710-11 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 47, 112 L.Ed.2d 23 (1990) (though the Smiths who were not officers, agents or employees of a federally insured financial institution and could not be convicted of violating 18 U.S.C. § 1006, because the substantive offense can only be committed by an officer, agent or employee of an institution whose accounts are insured by the Federal Savings and Loan Insurance Corporation, the...