Olson, In re
| Decision Date | 08 September 1989 |
| Docket Number | No. 86-1,86-1 |
| Citation | 884 F.2d 1415 |
| Parties | In re Theodore B. OLSON. Div. . (Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, as Amended) |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Before MacKINNON, Presiding, BUTZNER and PELL, Senior Circuit judges.
Theodore B. Olson, as Assistant Attorney General, Office of Legal Counsel, was caught up in a separation of powers contest between the Congress and the Executive Branch and subjected, by an Independent Counsel appointed pursuant to 28 U.S.C. Sec. 591 et seq., to a protracted investigation into the truthfulness of his Congressional testimony. Along the way, the Supreme Court ruled on the constitutionality of the Independent Counsel provision of the Ethics in Government Act. Morrison v. Olson, --- U.S. ----, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). The Independent Counsel exonerated Olson of any offense and, as authorized by 28 U.S.C. Sec. 593(f) of the Ethics in Government Act, he petitions the Special Division of the court to award him $1,259,072.69 in compensation for the attorneys' fees he incurred. We order an award of $861,589.28 in reasonable attorneys' fees and expenses.
The statute provides that "the division of the court may, if no indictment is brought ... award reimbursement for those reasonable attorney's fees incurred ... during that investigation which would not have been incurred but for the requirements of this chapter...." 28 U.S.C. Sec. 593(f)(1) (emphasis added). If the "but for" requirement is satisfied the court is called upon to exercise its judicial discretion in awarding reasonable attorneys' fees. As the Senate Report states:
The court should award only that portion of the fees, if any, which it determines would not have been incurred in the absence of the special prosecutor law.
S.Rep. 97-496, 97th Cong., 2d Sess. 18 (1982), U.S.Code Cong. & Admin.News 1982, pp. 3537, 3554. The "but for" requirement and the standard of reasonableness for attorneys' fees are discussed where relevant in the following analysis.
Our opinion in In Re Donovan, 877 F.2d 982, 984-986 Div. No. 85-1 at 1-5 (D.C.Cir.1989), outlines the history of the 1978 Ethics in Government Act 1 and its progeny. 2 The premise from which the Ethics Act springs is that the Department of Justice cannot, and cannot be perceived to, conduct a full and impartial investigation of allegations of criminal wrongdoing by high Executive Branch officials in the same administration that controls the Department of Justice. 3 The Independent Counsel Act seeks to remedy the problem by providing a mechanism through which an investigation into allegations of criminal misconduct by high officials in the Executive Branch may be conducted in major respects "separate from and independent of the Department of Justice...." 28 U.S.C. Sec. 594(i).
In the 1982 Act, Congress first authorized the payment of attorneys' fees incurred by unindicted subjects of independent counsel investigations where, under normal Justice Department procedures, the subject would not have incurred such fees.
The 1982 remedial amendments provided, with some notable exceptions, 4 that an independent counsel investigation should not commence where an ordinary Justice Department investigation would not be initiated, 5 and that an unindicted subject of an independent counsel investigation may recover the reasonable attorneys' fees which he would not have incurred "but for" the operation of the Act.
Petitioner requests reimbursement for "Preliminary Investigation (Jenner & Block)--$30,028.34." This request is for attorneys' fees at his attorneys' "C" rate incurred for representation "during the preliminary investigation [January 2, 1986--April 22, 1986] conducted by the Department of Justice...." Petition at p. 18. This phase of the investigation followed the Department's receipt of a request from the Judiciary Committee of the House of Representatives and preceded the Attorney General's decision to request the Special Division of the court to appoint an independent counsel and define jurisdiction.
The evaluation of the fee petition by the Attorney General opposes petitioner's request for fees incurred during this period. We agree. As the Senate Report states: "The bill does not authorize reimbursement for expenses incurred during the preliminary investigation...." S.Rep. 97-496, supra, at 18, U.S.Code Cong. & Admin.News 1982, p. 3554. The statute is also specific on this point. As set forth above, it provides that: "an individual who is the subject of an investigation conducted by an independent counsel ... may [be] award[ed] reimbursement for those reasonable attorneys' fees incurred by that individual during that investigation...." 28 U.S.C. Sec. 593(f)(1) (emphasis added).
Moreover, this "preliminary" phase of the investigation would not satisfy the "but for" requirement. Given the accusation, any person would have been investigated. As it turned out, the investigation at this incomplete stage produced ample support for the appointment of an independent counsel from the Public Integrity Section of the Department of Justice, two separate evaluations prepared independently by two highly experienced lawyers in the Department (one a highly qualified United States attorney on temporary assignment for the purpose), and the Judiciary Committee of the House of Representatives. The reports of all three analyses within the Department of Justice recommended that the Attorney General apply for the appointment of independent counsel to investigate some of the allegations against Olson as set forth in the House Report.
We thus reject this part of the petition. The fees were not "incurred ... during [the] investigation ... conducted by an independent counsel." Id.
The remainder of the fees for which reimbursement is requested total $1,229,044.35. Such fees were incurred during four separate periods.
In the First period (April 23, 1986 to November 14, 1986) the Attorney General applied for the appointment of independent counsel, such counsel was appointed, the initial investigation followed, and the period ended with the announcement on November 14, 1986 by Independent Counsel of her determination that "standing in isolation ... Mr. Olson's testimony of March 10, 1983, probably does not constitute a prosecutable violation of any federal criminal law...." Letter from Independent Counsel to Attorney General Meese (Nov. 14, 1986) at 3.
The greater portion of her investigation necessarily duplicated ground that had been covered by the preliminary investigation of the Department of Justice that had been based on the exhaustive investigation outlined in the Report of the Judiciary Committee of the House of Representatives. The 1982 Senate Committee Report on the Ethics in Government Act considered such situations and stated:
Thus, the Committee believes that reimbursement of attorneys' fees would be warranted, if at all, in only rare instances. This amendment is included, however, as a safeguard to compensate officials in the event that they do incur extraordinary expenses during a special prosecutor investigation which eventually absolves them of any wrong doing. Reimbursement may be warranted, for example, in instances where the special prosecutor duplicates actions which have been taken by the Attorney General during the preliminary investigation. The Committee stresses, however, that the court should award attorneys' fees sparingly, and that reimbursement should not become a routine event.
S.Rep. 97-496, P.L. 97-409, July 14, 1982, p. 19, U.S.Code Cong. & Admin.News 1982, p. 3555 (emphasis added). The court is admonished to award reimbursement for attorneys' fees "in only rare instances" for "extraordinary expenses," "sparingly," and 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." Id. We thus conclude it is the expressed intent of Congress that "reasonable" attorneys' fees incurred by Olson during this period satisfy the "but for" requirement and are compensable.
The Second period (November 14, 1986 until April 2, 1987) encompassed the request by Independent Counsel for expanded jurisdiction to investigate others in the Department of Justice, primarily on conspiracy charges. It ended on April 2, 1987 in the decision by the Special Division of the court refusing to authorize the additional jurisdiction. In re Olson, 818 F.2d 34, 47 (D.C.Cir.1987). The court's opinion also pointed out that the defined jurisdiction of Independent Counsel authorized her to investigate Olson's participation in any conspiracy which violated "any federal criminal law." Id. at 47. The Attorney General's application had requested the court to so define the jurisdiction of Independent Counsel. 6
This period was devoted exclusively to the successful opposition by Olson's attorneys to the request by Independent Counsel for expansion of her prosecutorial authority. We find for this period that the "but for" requirement is clearly satisfied. The Attorney General initially denied the request, except as to Robert M. Perry, General Counsel of the Environmental Protection Agency, 7 on the ground that he had already considered and denied the principal request as to Edward Schmults, former Deputy Attorney General, and Carol Dinkins, former Assistant Attorney General. The Independent Counsel then applied to the Special Division for the expansion of the authority that had been denied her by the Attorney General. The court ruled that, under the statute, the Attorney...
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