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.

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 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

1We 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.

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.
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.
5

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.