United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed January 7, 2005
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(BACON FEE APPLICATION)
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
Before: SENTELLE, Presiding, FAY and REAVLEY, Senior
Circuit Judges.
ORDER
This matter coming to be heard and being heard before the
Special Division of the Court upon the application of Kenneth
H. Bacon for reimbursement of attorneys’ fees and costs
pursuant to section 593(f) of the Ethics in Government Act of
1978, as amended, 28 U.S.C. § 591 et seq. (2000), and it
appearing to the court for the reasons set forth more fully in the
opinion filed contemporaneously herewith, that the petition is
not well taken, it is hereby
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ORDERED, ADJUDGED, and DECREED that the
petition of Kenneth H. Bacon for attorneys’ fees that he incurred
during the Independent Counsel’s investigation be denied.
PER CURIAM
For the Court:
Mark J. Langer, Clerk
By:
Marilyn R. Sargent
Chief Deputy Clerk
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed January 7, 2005
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(BACON FEE APPLICATION)
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
Before: SENTELLE, Presiding, FAY and REAVLEY, Senior
Circuit Judges.
ON APPLICATION FOR ATTORNEYS’ FEES
Opinion for the Special Court filed PER CURIAM.
PER CURIAM : Kenneth H. Bacon petitions this Court under
section 593(f) of the Ethics in Government Act of 1978, as
amended, 28 U.S.C. §§ 591-599 (2000) (“the Act”), for
reimbursement of attorneys’ fees in the amount of $10,780.36
that he claims were incurred during and as a result of the
investigation conducted by Independent Counsel. Because we
conclude that Bacon has not carried his burden of establishing
all of the elements of his entitlement, we deny the petition in its
entirety.
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Background
During the mid-1990's, President William Jefferson Clinton
was involved in a sexual relationship with Monica Lewinsky, a
White House intern and subsequent employee. In April of 1996,
following her term at the White House, Lewinsky was hired as
a confidential assistant to the Assistant Secretary of Defense for
Public Affairs, Kenneth H. Bacon, who is the fee petitioner
here. While working for Bacon, Lewinsky became friends with
a fellow employee in Bacon’s department, Linda Tripp, and
confided to Tripp the details of her relationship with the
President.
Subsequently, in December of 1997, Lewinsky was
subpoenaed to testify in a sexual discrimination case filed
against President Clinton by Paula Jones. Jones had been a state
employee in Arkansas during the 1980's when Clinton was
governor there, and alleged that during that time he had solicited
sex from her, that she had declined, and that as a result her state
employment had been illegally affected. In subpoenaing
Lewinsky, Jones’s attorneys were apparently seeking to discover
whether there were other government employees from whom the
President had solicited a sexual relationship. Clinton and
Lewinsky, however, had previously agreed to deny their
relationship if asked, and Lewinsky told Tripp of her intention
to lie about it in her upcoming testimony. In a number of
telephone conversations, Tripp recorded these intent-to-lie
statements made by Lewinsky.
Ongoing at the same time was an investigation by
Independent Counsel (“IC”) Kenneth W. Starr into allegations
of impropriety concerning certain business dealings by Clinton
and others while he was governor. After recording the
telephone conversations, Tripp conveyed the substance of them
to IC Starr. Starr in turn presented this information to the
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Attorney General (“AG”) who then, pursuant to § 592(c) of the
Act, applied to this court to expand the IC’s jurisdiction to
include investigation of the Lewinsky matter. This the court did
on January 16, 1998. Soon thereafter, the media reported that
the President was under investigation for possible perjury or
obstruction of justice in connection with the Jones litigation.
Consequently, in the ensuing media frenzy, Linda Tripp
became the focus of intense interest. In mid-March, 1998, a
reporter for New Yorker magazine called Bacon, explaining that
she was researching a story on Tripp and had uncovered
information suggesting that Tripp had been arrested in 1969.
She inquired of Bacon whether this arrest had been disclosed on
Tripp’s security clearance application form. Bacon asked one
of his deputies, Clifford Bernath, to follow up on the reporter’s
inquiry. After obtaining copies of the relevant forms, Bernath,
with Bacon’s knowledge, called the reporter and told her that
Tripp had not disclosed any arrest record. The reporter then
used this information in her New Yorker article. Disclosure of
such information was prohibited by the Privacy Act, 5 U.S.C. §
552a(b).
At the time of the release of this information, Tripp was a
cooperating witness in the IC’s investigation. Upon learning
that information protected by the Privacy Act had been released,
the IC conducted grand jury proceedings to determine if the
release by Bacon and Bernath was part of an effort to intimidate
Tripp in her capacity as a cooperating witness or part of an effort
to obstruct justice. Ultimately the IC decided that there was
insufficient evidence to bring any indictments in the matter.
Pursuant to § 593(f)(1) of the Act, Bacon now petitions the
court for attorneys’ fees in the amount of $10,780.36 that he
incurred in his defense of the IC’s investigation. As directed by
§ 593(f)(2) of the Act, we forwarded copies of Bacon’s fee
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petition to the AG and the IC and requested written evaluations
of the petition. The court expresses its appreciation to the IC
and the AG for submitting these evaluations, to which we have
given due consideration in arriving at the decision announced
herein.
Discussion
The Independent Counsel statute provides:
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.
28 U.S.C. § 593(f)(1). Accordingly, in order to obtain an
attorneys’ fees award under the statute, a petitioner must show
that all of the following requirements are met: 1) the petitioner
is a subject of the investigation; 2) the fees were incurred during
the investigation; 3) the fees would not have been incurred but
for the requirements of the Act; and, 4) the fees are reasonable.
See In re North (Dutton Fee Application), 11 F.3d 1075, 1077-
82 (D.C. Cir., Spec. Div., 1993) (per curiam). 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 curiam).
The IC and the DOJ agree that Bacon was an unindicted
subject of the IC’s investigation, that the fees were incurred
during the investigation, and that the fees requested are
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reasonable. The only matter in contention therefore is whether
Bacon has fulfilled the “but for” requirement of the Act.
Bacon appears to argue that he passes the “but for” test for
three reasons. First, he asserts that regarding the IC’s
investigation of the Lewinsky matter, “[it] seems clear that a
politically appointed Attorney General would not have
investigated the President for allegedly lying in a civil
deposition about his sexual relations with a nonparty witness.”
For authority, Bacon references this court’s decisions
concerning several fee petitions from the Iran/Contra
investigation, in which it was held that the “but for” element was
fulfilled because a politically appointed Attorney General would
not have investigated an alleged criminal conspiracy to violate
the Boland Amendments. See, e.g., In re North (Regan Fee
Application), 72 F.3d 891, 895-96 (D.C. Cir., Spec. Div., 1995);
In re North (Dutton Fee Application), 11 F.3d 1075, 1080-81
(D.C. Cir., Spec. Div., 1993). Bacon argues that his is a similar
situation because “if the Attorney General would not have
investigated the Lewinsky matter, then the attorney’s fees
sought by [him] . . . clearly would not have been incurred ‘but
for’ the requirements of the Act.”
Second, Bacon argues that the particular conduct
concerning him that was investigated, i.e., a public affairs
officer’s response to a reporter’s question about Tripp’s answer
on a security clearance form, was looked into “only because Ms.
Tripp was a critical witness in an ongoing OIC investigation,”
(original emphasis), and that “[a] fortiori, [he] would not have
incurred fees but for the requirements of the Act.”
Finally, Bacon claims that the IC’s investigation of him for
a potential violation of the Privacy Act “was highly unusual” in
that such violations are “comparable to a minor traffic ticket”
and that “[n]o prosecutor with an ordinary docket and a sense of
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proportion would have spent much time investigating this matter
as a potential Privacy Act violation.”
In her evaluation, the IC asserts that Bacon has failed to
demonstrate that the requirements of the Act caused him to incur
legal expenses that he otherwise would not have. Addressing
Bacon’s argument that a regular prosecutor would not have
investigated the Lewinsky affair, the IC notes that this court
gave IC Starr the jurisdiction to investigate the matter because
“the Attorney General felt that further investigation of the
serious crimes of perjury and obstruction of justice were
warranted,” and that these are “precisely the type of crimes
federal prosecutors routinely investigate and prosecute.” As for
Bacon’s own conduct in the matter, the IC states that such
actions “would have caused any prosecutor to investigate what
appeared to be an attempt to use confidential information
illegally to intimidate witnesses in an ongoing criminal
investigation,” and that Bacon therefore fails the “but for” test
because “[i]nvestigation and potential prosecution of witness
intimidation is not the type of activity that is uniquely related to
the Act.”
The DOJ, for basically the same reasons, also argues that
Bacon has not passed the “but for” test. First, the DOJ notes
that the investigation of the Lewinsky matter “concerned
primarily and explicitly allegations of perjury and obstruction of
justice,” that these allegations “were serious and credible,” and
that “[s]uch allegations can be, and are, investigated and
prosecuted by the Department of Justice.” Second, the DOJ
takes issue with Bacon’s Privacy Act argument, stating that,
although rare, the DOJ does indeed investigate such matters, and
points out that in any event the investigation was much broader
than that as it concerned a possible conspiracy to obstruct justice
by intimidating or smearing a government witness, Linda Tripp.
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After carefully reviewing each of the three “but for” reasons
put forth by Bacon, we conclude that he has not carried his
burden of establishing this element. What he apparently is
arguing for his first reason is that in the absence of the Act the
Attorney General would never have investigated the Lewinsky
matter because the allegations surrounding it, in particular
concerning the President, were not serious enough. However,
when the court considered the fee reimbursement request of
Lewinsky herself, it had an opportunity to detail the seriousness
of the charges involved:
the underlying allegations were that Lewinsky lied under
oath in a pending lawsuit against the President of the United
States; that she was planning to lie again and had
encouraged others to lie; that she had spoken to the
President and an associate of the President about the matter;
and, at least implicitly, that the President and his associate
may themselves have been involved in the wrongdoing.
In re Madison Guar. Sav. & Loan (Lewinsky Fee Application),
352 F.3d 437, 445 (D.C. Cir., Spec. Div., 2003) (per curiam).
The court then went on to ask whether “evidence of criminal
wrongdoing by an incumbent President and accomplices of that
President [would] have escaped an investigation of similar scope
in the absence of the Ethics in Government Act,” and citing to
the pre-Act investigation of the Watergate matter, answered in
the negative. Id. at 445-46. Applying the same logic here,
Bacon’s claim that a “politically appointed Attorney General”
would not have investigated the Lewinsky matter is groundless.
Bacon’s second reason for fulfilling the “but for”
requirement boils down to claiming that he was investigated by
an independent counsel only because an independent counsel
was appointed to investigate the Lewinsky matter. A similar
argument was put forth by one of the fee applicants caught up in
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the investigation of former HUD Secretary Samuel Pierce. In re
Pierce (Kisner Fee Application), 178 F.3d 1356, 1360 (D.C.
Cir., Spec. Div., 1999) (per curiam). There, the applicant argued
that the “but for” requirement was met in his case because if the
Act had not authorized the appointment of an independent
counsel, then the grand jury which he was called before would
never have been in existence. The court rejected this argument,
noting that it “ha[d] repeatedly held . . . that subjects . . . do not
automatically meet the ‘but for’ test simply because the
investigation was conducted by an independent counsel under
the Act.” Id. Rather, the court stated, the test is whether in the
absence of the Act an investigation of the matter would
nevertheless have been undertaken by the appropriate
authorities, e.g., the DOJ. Id. As there, the answer here appears
to be yes.
Bacon’s final claim, that no ordinary prosecutor would have
bothered to investigate him for an offense as minor as a
violation of the Privacy Act, skews the facts. As the DOJ in its
evaluation points out, the investigation of Bacon concerned
much more than just the Privacy Act. It also involved the
possibility of a conspiracy to obstruct justice by intimidating a
government witness, which the DOJ notes is a crime that it “of
course investigates and prosecutes.”
Conclusion
For the reasons set forth above, we hold that Bacon is not
eligible for reimbursement of his attorneys’ fees as he has failed
to pass the “but for” test.