UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE: RONALD H. BROWN (BRANNOCK FEE APPLICATION)


95-0002b

D.C. Cir. 2000


*	*	*


Opinion for the Special Court filed PER CURIAM.


PER CURIAM: Lisa M. Brannock petitions this court  under Section 593(f)
of the Ethics in Government Act of 1978,  as amended, 28 U.S.C. s 591
et seq. (1994) (the "Act"), for  reimbursement of attorneys' fees in
the amount of $7,354.45  that she incurred during and as a result of
the investigation  conducted by Independent Counsel ("IC") Daniel S.
Pearson.  Because we conclude that Brannock has not carried her 
burden of showing that the fees would not have been incurred  but for
the requirements of the Act, we deny the petition in  its entirety.


Background


Ronald H. Brown began a term as Secretary of Commerce  in January of
1993. Allegations arose thereafter concerning  improprieties related
to his financial transactions. In particu- lar, there were media
reports that Secretary Brown may have  failed to disclose required
information about First Interna-


tional, a company he owned with a business associate, Nolan- da S.
Hill. As the Secretary of Commerce is a "covered  person" under 29
U.S.C. s 591(b)(2), the Independent Coun- sel statute was triggered.
On February 15, 1995, pursuant to  28 U.S.C. s 592(a)(1), the
Department of Justice ("DOJ")  notified the Court that it had
initiated a preliminary investi- gation concerning Secretary Brown's
finances. That investi- gation subsequently determined, inter alia,
"that Secretary  Brown received things of value totalling almost
$500,000 from  First International while he was Secretary of
Commerce,"  and after completion of the preliminary investigation the 
Attorney General applied to this Court for the appointment of  an
independent counsel. Application to the Court Pursuant  to 28 U.S.C. s
592(c)(1) for the Appointment of an Indepen- dent Counsel, May 16,
1995. On July 6, 1995, we appointed  Daniel S. Pearson independent
counsel for this matter. The  Order appointing Pearson authorized him
to investigate, inter  alia, First International and other companies
controlled or  operated by Nolanda Hill. Lisa Brannock, the fee
petitioner  here, was the registered agent of one of Hill's companies
and  former officer or director of two other Hill corporations.


The IC's investigation was proceeding when, on April 3,  1996,
Secretary Brown was killed in an airplane accident. IC  Pearson
subsequently determined that, in light of the Secre- tary's death,
"the original reason for the appointment of an  Independent Counsel
... no longer existed," Final Report of  the Independent Counsel In
re: Ronald H. Brown at 7  (submitted June 10, 1996) (hereinafter Final
Report), and it  would be "in the public's best interest to transfer
the investi- gation" to the Department of Justice, id. at 1. The DOJ 
agreed to the transfer, which was completed by May 31, 1996.  Id. On
June 10, 1996, IC Pearson submitted his final report  to this Court.
On July 7, 1999, the DOJ advised the Court  that its investigations
and prosecutions of all matters referred  to it by the IC had been
completed. Thereafter, the present  fee petitioner filed an
application with this Court, seeking  reimbursement of attorneys' fees
assertedly incurred in con- nection with the IC's investigation.


ANALYSIS


The Ethics in Government Act provides for reimbursement  of attorneys'
fees expended by subjects in defense against an  investigation under
the Act. Specifically, 28 U.S.C.  s 593(f)(1) states:


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.


Because the Act "constitutes a waiver of sovereign immuni- ty it is to
be strictly construed." In re Nofziger, 925 F.2d  428, 438 (D.C. Cir.,
Spec. Div., 1991) (per curiam). Therefore,  the Act provides only
reimbursement for attorneys' fees that  survive an elemental analysis
determining whether the peti- tioner is the "subject" of the
independent counsel's investiga- tion, incurred the fees "during" that
investigation, and would  not have incurred them "but for" the
requirements of the Act.  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


As we have held, "[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. Div., 1989)  (per curiam).
The purpose of awarding only fees that would  not have been incurred
"but for" the Act is to ensure that  "officials who are investigated
by independent counsels will  be subject only to paying those
attorneys' fees that would  normally be paid by private citizens being
investigated for the  same offense by" federal executive officials
such as the Unit- ed States Attorney. Id. at 452-53 (citing S. Rep.
No. 97-496,  at 18 (1982), reprinted in 1982 U.S.C.C.A.N. 3537, 3554 
(referring to "fees [that] would not have been incurred in the 
absence of the special prosecutor [independent counsel] 


law")). We conclude that Brannock has not met the "but for" 
requirement.


The Order appointing Pearson as IC authorized him to  investigate
"whether Ronald H. Brown, Secretary of the  Department of Commerce,
committed a violation of any feder- al criminal law ... in connection
with: (1) accepting money  and other things of value from Nolanda Hill
or First Interna- tional, Inc." Order Appointing Independent Counsel,
July 6,  1995. As the Independent Counsel points out, it thus appears 
that the investigation of Nolanda Hill, whom Lisa Brannock  was
employed by, was precipitated by her alleged act of  giving things of
value to a high-ranking government official.


The Order further gave IC Pearson the "jurisdiction and  authority to
investigate whether Nolanda Hill violated federal  criminal law ...
through or in connection with the operations  of her organizations,
including, but not limited to First Inter- national, Inc., and related
organizations." Id. One such  related organization investigated by the
IC was the Corridor  Broadcasting Corporation ("Corridor"), of which
Hill was  owner, president, and chief executive officer. According to 
the IC's Final Report, the IC's office "investigated allegations  that
at the same time Corridor failed to make payments on its  outstanding
loans by asserting lack of finances to the banks  and FDIC, it was
using Corridor income for the personal  benefit of its owner Nolanda
Hill." Final Report at 6.  Ultimately, Nolanda Hill pleaded guilty to
preparing and  presenting fraudulent tax returns for three years,
based upon  income from Corridor Broadcasting Co. Evaluation by Inde-
pendent Counsel at 11 n.4. Lisa Brannock was an officer or  director
of two broadcasting stations owned by Corridor.


Another related organization of Hill's was Columbia Leas- ing
Enterprise. The IC investigated Hill for using this  company in
connection with acts involving the aiding and  assisting in false and
fraudulent statements. Brannock was  listed as Columbia's registered
agent and therefore its custo- dian of records. Evaluation by
Independent Counsel at 10- 11.


As we noted in In re Nofziger, 938 F.2d 1397 (D.C. Cir.,  Spec. Div.,
1991) (per curiam), under the Act, "the first  requirement a subject
must meet is to submit legal and  factual authority proving that he
was subjected to an investi- gation and prosecution that satisfy the
'but for' requirement,  i.e., an investigation that subjected him to
different standards  of the criminal law than are applied to private
citizens, or ...  that constituted a more rigorous application of the
criminal  law than is applied to private citizens." Id. at 1400. The
acts  listed above for which Nolanda Hill was investigated--giving 
things of value to a high government official, tax fraud, false 
statements--did not subject her to a "different standard" nor 
constitute a "more rigorous application" of the criminal law.  Indeed,
the listed acts are regularly investigated by United  States Attorneys
as well as by the Tax Division of the DOJ.  We are thus persuaded that
even in the absence of the Act  Nolanda Hill would have been
investigated for these activities  and that Lisa Brannock, as an
employee of Hill's, would have  nevertheless incurred the attorneys'
fees for which she now  seeks reimbursement. Cf. In re Pierce (Olivas
Fee Applica- tion), 178 F.3d 1350, 1355 (D.C. Cir., Spec. Div., 1999)
(per  curiam) ("If the investigative act generating the defensive 
costs would, in the absence of the Act, have been pursued by  other
authorities--'had the case been handled by the Depart- ment of Justice
or other executive authorities rather than the  Independent
Counsel'--then Congress did not contemplate  the award of counsel


Conclusion


The petition of Lisa M. Brannock for reimbursement of  attorneys' fees
is denied for failure to satisfy the "but for"  requirement of 28
U.S.C. s 593(f)(1).