In re: Babbitt v. (Thornberry Fee Application)

I agree that for the reasons noted in the majority opinion, Ms. Thornberry has not established that she was a “subject” of the investigation primarily directed at Secretary Babbitt. Therefore, she is not entitled to fees.

However, I do not agree that her application fails to meet the “but for” test. Like the investigation of Catherine Baker Stetson, the investigation involving Ms. Thornberry was merely a part of the Babbitt investigation, and its status with respect to the “but for” test must be the same as that assigned to Secretary Babbitt’s request for fees. Ms. Thornberry was involved only…