United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 5, 2005
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(BERNATH 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 Clifford H.
Bernath 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
2
ORDERED, ADJUDGED, and DECREED that the
petition of Clifford H. Bernath 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
1
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 5, 2005
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(BERNATH 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: Clifford H. Bernath 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” or “the
Independent Counsel Statute”), for reimbursement of attorneys’
fees in the amount of $6,093.75, that he claims were incurred
during and as a result of the investigation conducted by
Independent Counsel. Because we conclude that Bernath has
not carried his burden of establishing all of the elements of his
entitlement, we deny the petition in its entirety.
2
Background1
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 Kenneth H. Bacon, the Assistant
Secretary of Defense for Public Affairs. While working for
Bacon, Lewinsky befriended 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
decided 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.
1
We have had recent occasion to review the facts of this
matter in In re Madison Guaranty Savings & Loan (Bacon Fee
Application), 393 F.3d 1317, 1318-19 (D.C. Cir., Spec. Div.,
2005) (per curiam). Rather than re-plow recently tilled ground,
we have adopted from that opinion much of the language for the
background portion of this opinion.
3
Ongoing at the same time was an investigation by
Independent Counsel Kenneth W. Starr (hereinafter “IC” or
“OIC”) 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 Attorney General 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 v. Clinton 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 H. Bernath, the fee petitioner here, 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. Such information was prohibited from being
disclosed under the Privacy Act, see 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
4
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, Bernath now petitions the
court for attorneys’ fees in the amount of $6,093.75 that he
claims were incurred in his defense of the IC’s investigation.
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 main
issue in contention appears to be whether Bernath has fulfilled
the “but for” requirement of the Act.
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We have in the past held that “[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). On numerous occasions we have also
held that “the contemplation of the legislation is not that
subjects of independent counsel investigations will be
reimbursed for all legal fees, but only . . . for those legal fees
that would not have been incurred by a similarly-situated subject
investigated in the absence of the Act.” In re Madison Guaranty
Savings & Loan (Clinton Fee Application), 334 F.3d 1119, 1123
(D.C. Cir., Spec. Div., 2003) (per curiam). Bernath appears to
argue that he passes the “but for” test for three reasons. First, he
claims that the OIC’s pursuit of him for a possible criminal
violation of the Privacy Act was “very unusual” in that
violations of the Act are considered to be only “infractions” that
are subject to the lowest sentencing level and therefore rarely
prosecuted by the DOJ. In other words, he appears to be
asserting that the only allegation surrounding his conduct
concerned a violation of the Privacy Act, and since the DOJ
rarely prosecutes such violations, then in the absence of the Act
the investigation of the matter would have fallen to the DOJ
which would not have bothered with it.
Second, he compares his situation to that of certain fee
applicants who were caught up in the Iran/Contra independent
counsel investigation. In those cases, the court found the “but
for” requirement fulfilled as the independent counsel had
investigated them for criminal conspiracy to violate the Boland
Amendments, which the court noted would not have been
undertaken by a politically appointed Attorney General. See In
re North (Regan Fee Application), 72 F.3d 891, 895 (D.C. Cir.,
Spec. Div., 1995); In re North (Dutton Fee Application), 11 F.3d
at 1080-81. Bernath argues that in a similar fashion he too has
fulfilled the “but for” requirement because “the Attorney
General would not have investigated the Lewinsky matter,”
6
although he does not explain why he believes this latter
statement to be true.
Third, Bernath asserts that when he responded to the New
Yorker reporter’s inquiry he was acting “within the scope of his
employment,” and that “[u]nder normal circumstances” the case
would have been handled administratively. It was investigated
by the OIC, according to Bernath, because the OIC believed
“that this release might have been made to obstruct the OIC’s
investigation,” and also because “of pressure from partisan
political legislators.”
In her evaluation, the IC first takes issue with Bernath’s
assertion that in the absence of the Act the Attorney General
would not have investigated the Lewinsky matter. She notes
that the allegations concerned “the serious crimes of perjury and
obstruction of justice” which are “precisely the type of crimes
federal prosecutors routinely investigate and prosecute.”
The IC then disputes Bernath’s claim that when he gave the
information concerning Tripp to the New Yorker reporter he was
acting within the scope of his employment and therefore any
question concerning these actions would have been handled
administratively. According to the IC, such actions “would have
caused any prosecutor to investigate what appeared to be an
attempt to use confidential government information illegally to
intimidate witnesses in an ongoing criminal investigation.”
The DOJ likewise disputes Bernath’s contention that the
Lewinsky matter would not have been investigated by an
Attorney General. Like the IC, the DOJ notes that the
allegations surrounding the matter primarily concerned perjury
and obstruction of justice, and that these allegations were serious
and credible. As such, in the DOJ’s opinion, there would have
been an investigation of the matter even in the absence of the
7
Act.
The DOJ also takes issue with Bernath’s claim that the DOJ
does not investigate allegations of criminal violations of the
Privacy Act. Asserting that this claim by Bernath ignores the
true nature of the IC’s investigation, the DOJ again emphasizes
that the investigation concerned more broadly whether Bernath’s
actions were part of a larger effort to obstruct the IC’s
investigation, and that the DOJ “of course investigates and
prosecutes individuals that it believes have conspired to obstruct
justice.” In any event the DOJ notes that although rare, it does
in fact investigate violations of the Privacy Act. Indeed, after
the IC declined to prosecute Bernath for obstruction of justice,
it forwarded the case to the DOJ for disposition of the Privacy
Act allegation, which the DOJ states was then investigated.
Consequently, asserts the DOJ, this investigation by the DOJ of
Bernath for a violation of the Privacy Act makes it difficult for
Bernath to argue that such an investigation would not have taken
place in the absence of the Act.
* * * * * * * * *
After consideration of the parties’ views, we conclude that
Bernath has not put forth a convincing argument that he has
passed the “but for” test. His first claim, that the DOJ would not
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 Bernath 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.” See Bacon Fee
Application, at 1321.
8
Bernath’s second argument, that the Attorney General
would not have investigated the Lewinsky matter, also fails.
When we considered the fee reimbursement request of Lewinsky
herself, we had an opportunity to detail the seriousness of the
charges involved:
[t]he 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).
We 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. Consequently, Bernath’s claim that
the “the Attorney General would not have investigated the
Lewinsky matter” is without merit.
For the same reasons, Bernath’s final argument, that absent
the existence of the IC’s investigation his case would have been
handled administratively, is also meritless. Again, he appears to
be implying that if the IC had not investigated him then no
criminal investigation of him would ever have occurred. But as
Bernath himself points out, the IC investigated the matter
because the IC believed that the release of the information
concerning Tripp was an attempt to obstruct the IC’s
investigation. As mentioned, absent the existence of the IC, the
release of this information concerning Tripp would have been
9
the subject of a DOJ investigation, which in all likelihood would
have included a determination as to whether there was any
attempt to obstruct that investigation.
Conclusion
For the reasons set forth above, the petition for fees of
Clifford H. Bernath is denied as he has failed to satisfy the “but
for” requirement of the Act.