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.

O R D E R

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 (LewinskyFee 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.