# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed July 5, 2005

Division No. 94-1

I N R E : M ADISON G

UARANTY S AVINGS & L OAN

(B ERNATH F EE A

PPLICATION )

Division for the Purpose of

Appointing Independent Counsels

Ethics in Government Act of 1978, As Amended

Before: S ENTELLE

, Presiding , F AY and R EAVLEY

, Senior

Circuit Judges

.

O R D E R

This matter coming to be heard and being heard before the

S pecial Division of the Court upon the application of Clifford H.

Bernath for reimbursement of attorneys’ fees a n d costs pursuant

to section 593(f) of the Ethi cs 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 f ully in the opinion filed

contemporaneously herewith, that the petition is not well taken,

it is hereby2

ORDER ED, ADJUDGED, a nd DECREED that the

petition of Clifford H. Bernath for attorneys’ fees that he

incurred during the Independent Counsel’s inve stigation be

denied.

P ER C URIAM

For the Court:

Mark J. Langer, Clerk

By:

Marilyn R. Sargent

Chief Deputy Clerk1



# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed July 5, 2005

Division No. 94-1

I N R E : M ADISON G

UARANTY S AVINGS & L OAN

(B ERNATH F EE A

PPLICATION )

Division for the Purpose of

Appointing Independent Counsels

Ethics in Government Act of 1978, As Amended

Before: S ENTELLE

, Presiding , F AY and R EAVLEY

, Senior

Circuit Judges

.

ON APPLICATION FOR ATTORNEYS' FEES

Opinion for the Special Court filed P ER C URIAM

.

P ER 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 reimburs e ment of attorneys’

fees in the amo unt of $6,093.75, that he claims were incurred

d u ring and as a result of the investigation conducted by

Independent Counsel. Because we conclude that Bernath has

not ca rried his burden of establishing all of the elements of his

entitlement, we deny the petition in its entirety.2

1 We have had recent occasion to rev iew the facts of this

matter in In re Madison Guaranty Savings & Loan (Bacon Fee

App l ication), 393 F.3d 1317, 1318-19 (D.C. Cir., Spec. Div.,

2005) (per curiam) . Rather than re-plow recently tilled ground,

we hav e adopted from that opinion much of the language for the

background portion of this opinion.

Background 1

During the mid-1990's, Presi d ent William Jefferson Clinton

was involved in a sexu al relationship with Monica Lewinsky, a

White House intern and subsequen t employee. In April of 1996,

followi ng her term at the White House, Lewinsky was hired as

a confidential assistant to Kennet h 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 confid ed to Tripp the details of her

relationship with the President.

Subsequently, in D e cember of 1997, Lewinsky was

subpoenaed to testify in a sexual discriminat ion case filed

against President Clinton by Paula Jones. Jones had been a state

employee in Arka n sas during the 1980's when Clinton was

Governor there, and a lleged that during that time he had

solicited sex from her, that sh e had declined, and that as a result

her state employment had been illegally affe cted. In

subpoenaing Lewinsky, Jones’s atto r neys were apparently

seeking to discover whether there were other government

e mployees 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 upcom ing testimony.

In a number of

telephone conversations, Tripp recorded these

intent-to-lie statements made by Lewinsky.3

Ongo ing at the same time was an investigation by

Independent Counsel Kenneth W. Starr (hereinafter “IC” or

“OIC”) into alleg

ations of impropriety concerning certain

business dealings by Clinton and others while he was Gover n or.

After recording the telephone conversations, Tripp conveyed the

substance of them to IC Starr. Starr in turn presented this

information to t

he Attorney General who then, pursuant to §

592(c) of the Act, applied to this court to expand the IC’s

jurisdiction to include investigati on of the Lewinsky matter.

This the court did on January 16, 1998. Soon thereafter, the

media repo rted that the President was under investigation for

possible perjury or obstruction of justice in connecti on with the

Jones v. Clinton litigation.

Consequently, in the ensuing media frenzy, Lin d a Tripp

became the focus of intense interest. In mid-March, 1998, a

reporter for New Yorker magazine called Bacon, ex p laining that

s he was researching a story on Tripp and had un covered

information suggesting that Tripp had been arrested in 1969.

She inquired of Bacon whether this arrest had been disclosed on

Tripp’s sec urity clearance application form. Bacon asked one

of his deputies, Clifford H. Bernath, the f ee petitioner here, to

follow up on the repor ter’s inquiry. After obtaining copies of

the relevant forms, Bernath, with Bacon’s knowledge, called the

reporter and told her th

a t Tripp had not disclosed any arrest

record. The reporter then used this information in her N ew

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 h ad 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 effort4

to obstruct justice. Ultimately the IC decided that there was

insufficient evidence to bri ng any indictments in the matter.

Pursuant to § 593(f)(1) of the Act, Bernath no w petitions the

court for at

torneys’ 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 reques t of an individual who is the subject of

an investigation con

ducted 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, awar d reimbursement for

those reasonable attorneys' fees i n curred by that

individu al during that investigation which would not

have been incurred but for the requiremen ts 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 s ubject of the investigation, (2) the fees were incurred

during t he investigation, (3) the fees would not have been

incurred but for the requirements of t he Act, and (4) the fees are

reasonable. See In re North (Dutton Fee Application)

, 11 F.3d

107 5

, 1077-82 (D.C. Cir., Spec. Div., 1993) (per curiam). The

petitioner “bears the burden of establishing all element s of his

entitlemen t.” I n re North (Reagan Fee Application)

, 94 F.3d

685, 690 (D.C. Cir., Spec. Div., 1996) (per curiam). T he main

issue in contention appears to be whether Bernath has fulfilled

the “but for” requirement of the Act.5

We have in the p ast held that “[a]ll requests for attorneys'

f ees 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

s ubjects of independent counsel investigat ions will be

reimbursed for all

legal fees, but only . . . for those legal fees

that would not have been incurred by a simila rly-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

c laims that the OIC’s pursuit of him for a possible crimi nal

violation of the Privacy Act was “very unusual” in that

violations of the Act are consider e d to be only “infractions” that

are subject to the lowest sentencing level and therefore rarely

pro secuted by the DOJ. In other words, he appears to be

asserting that the only allegation surrounding his co nduct

c o ncerned 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 I ran/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 violat e the Boland

Amendments, which the court noted would not have been

undertaken by a political

ly appointed Attorney General. S ee 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

a t 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 responde d to the N ew

Y orker reporter’s inquiry he was acting “within the scope of h i s

employment,” and that “[u]nder normal ci rcumstances” the case

would have been handled administratively. It was investigated

by the OIC, according to Bernath, because t he OIC believed

“that this release might have been made to obstruct the OIC’s

investigatio n,” and also because “of pressure from partisan

political legislators.”

In her evaluation, the IC first takes issue with Bernath’s

asser tion that in the absence of the Act the Attorney General

would not have investigated the Lewinsky matt er. She notes

that the allegations concerned “the serious crimes of perjury and

obstruction of justice” which are “pre cisely the type of crimes

federal prosecutors routinely investigate and prosecute.”

The IC then disputes Bernath’s c laim that when he gave the

i nformation concerning Tripp to the New Yorker reporter he w a s

acting within the scope of his employment and therefore any

question concerning these actions would hav e 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 sur r ounding the matter primarily concerned perjury

and obstruction of j ustice, 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 the7

Act.

The DOJ a lso 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 investigat es and

prosecut e s 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 dispositi on of the Privacy

Act allegation, which the DOJ states was then investigated.

Consequently, asser

ts 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 w ould not have taken

place in the absence of the Act.

* * * * * * * * *

After considera

tion of the parties’ views, we conclude that

Bernath has not put forth a convin cing argument that he has

passed the “but for” test. His first claim, that the DOJ would not

have bothered to investigate him for an of fense as minor as a

viola tion 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 Lew insky matter, also fails.

When we considered the fee reimbursement request of L ewinsky

herself, we had an opportunity to detail the seriou sness of the

charges involved:

[t]he underlying allegations were that Lewinsky lied under

oath in a pending lawsuit against the Preside nt of the United

States; that

she was planning to lie again and had

encoura ged 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 Pr esident 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. I

d. at 445-46. Consequently, Bernath’s claim that

the “the Attorney General would not have in vestigated the

Lewinsky matter” is without merit.

For the sam

e reasons, Bernath’s final argument, that absent

the existence of th

e IC’s investigation his case would have been

handled a dministratively, is also meritless. Again, he appears to

be imply ing that if the IC had not investigated him then no

criminal investigation of

him would ever have occurred. But as

Be rnath himself points out, the IC investigated the matter

beca use the IC believed that the release of the information

concerning Tripp was an attempt to ob struct the IC’s

inve s tigation. As mentioned, absent the existence of the IC, the

release of this information concerning Tri pp would have been9

the subject of a DOJ investigation, which in a ll likelihood would

have included a determination as to whether there was any

attempt to obstruct that investigation.

Conclusion

For the reasons set forth above, t he petition for fees of

Clifford H. Bernath is denied as he h a s failed to satisfy the “but

for” requirement of the Act.