Berman v. Dep't of the Interior, 2010-3052
| Decision Date | 07 November 2011 |
| Docket Number | 2010-3052 |
| Parties | ROBERT A. BERMAN, Petitioner, v. DEPARTMENT OF THE INTERIOR, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
NOTE: This disposition is nonprecedential
Petition for review of the Merit Systems Protection Board in case no. DC0752090294-I-1.
ROBERT A. BERMAN, Vienna, Virginia, pro se.
JOSHUA E. KURLAND, Trial Attorney, Commercial Litigation Branch, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and TODD M. HUGHES, Deputy Director.Before BRYSON, MAYER, and GAJARSA, Circuit Judges.
Robert A. Berman ("Berman") petitions for review of the final decision of the Merit Systems Protection Board ("Board") denying his request for reconsideration of the Board's decision affirming his removal from federal employment. See Berman v. Dep't of Interior, Docket No. DC-0752-09-0294-I-1, slip op. at 2 (M.S.P.B. Oct. 30, 2009) ("Final Order"). For the reasons stated below, we vacate and remand.
The facts underlying this matter are set forth in numerous published opinions of the united States District Court for the District of Columbia and the united States Court of Appeals for the District of Columbia Circuit. See United States v. Project on Gov't Oversight, 454 F.3d 306 (D.C. Cir. 2006) ("POGO I"); United States v. Project on Gov't Oversight, 484 F. Supp. 2d 56 (D.D.C. 2007) ("POGO II"); United States v. Project on Gov't Oversight, 525 F. Supp. 2d 161 (D.D.C. 2007) ("POGO III"); United States v. Project on Gov't Oversight, 526 F. Supp. 2d 62 (D.D.C. 2007) ("POGO IV"); United States v. Project on Govt Oversight; 531 F. Supp. 2d 59 (D.D.C. 2008) ("POGO V"); United States v. Project on Gov't Oversight, 543 F. Supp. 2d 55 (D.D.C. 2008) ("POGO VII"); United States v. Project on Gov't Oversight, 572 F. Supp. 2d 73 (D.D.C. 2008) ("POGO VIII"); United States v. Project on Gov't Oversight, 616 F.3d 544 (D.C. Cir. 2010) ("POGO IX"). Nevertheless, a brief recitation of the facts and procedural posture is in order.
Berman was employed as an Economist, GS-0110-15, in the Office of the Secretary at the united States De-partment of the Interior ("Agency"). Beginning in 1994, Berman was contacted by representatives of the Project on Government Oversight ("POGO"), a non-profit organization "dedicated to remedying systematic abuses of power, mismanagement, and subservience of the federal government to special interests." POGO IX, 616 F.3d at 546. Over the next few years, Berman had between twenty and thirty telephone conversations with POGO's executive director, Danielle Brian ("Brian"), discussing oil royalty issues. In his conversations with POGO, Berman explained how oil royalties were underpaid and advised Brian on how to draft Freedom of Information Act ("FOIA") requests for government documents. Based in part on these conversations, POGO filed two qui tam actions in the united States District Court for the Eastern District of Texas. Specifically, POGO alleged that major oil companies violated the False Claims Act, 31 U.S.C. § 3729, by undervaluing the oil they extracted from federal and Indian lands and then underreporting and underpaying the oil royalties they owed to the Mineral Management Service of the u.S. Department of the Interior. After POGO filed suit, the united States intervened and entered into settlements with the oil company defendants that resulted in a recovery of $440 million.
Prior to filing the qui tam actions, Brian asked Berman whether he wanted to join the suits as a co-relator. Berman declined POGO's offer, but he subsequently entered into an agreement with POGO which provided that he would receive one-third of any money POGO recovered through the litigation. On November 2, 1998, POGO sent Berman a letter enclosing a $383,600 check. The face of the check indicated that it was a "Public Service Award," and the accompanying letter explained that POGO was awarding it to Berman for his "decade-long public-spirited work to expose and stop the oil com-panies' underpayment of royalties for the production of crude oil on federal lands." Pogo IX, 616 F.3d at 546.
On January 21, 2003, the Justice Department filed a civil complaint alleging, inter alia, that Berman and POGO violated 18 U.S.C. § 209(a) in connection with the $383,600 payment. Section 209(a) states, in relevant part:
18 U.S.C. § 209(a). In addition to criminal penalties, Section 216 authorizes the Attorney General to bring a civil action, as he did with Berman and POGO, against "any person who engages in conduct constituting an offense under . . . [18 U.S.C. § 209]." Id. at § 216(b).
The government moved for summary judgment on the Section 209(a) count, and the motion was granted by the district court. The District of Columbia Circuit reversed, finding a "genuine dispute as to whether POGO issued the check as compensation for [Berman's] governmentservice." POGO I, 454 F.3d at 306. Citing new evidence, the government made a second motion for summary judgment, but it was denied on the basis of a "genuine issue of material fact concerning the scope (if any) of Berman's official responsibilities concerning oil royalty matters." POGO III, 525 F. Supp. 2d at 166, 169-70.
On February 11, 2008, a jury found POGO and Berman liable for violating Section 209(a). Thereafter, the district court denied the defendants' motions for a new trial or, alternatively, for judgment as a matter of law. POGO VII, 543 F. Supp. 2d at 69. Berman and POGO appealed, and on August 3, 2010, the District of Columbia Circuit reversed in part, holding that intent was an essential element of a Section 209(a) violation. POGO IX, 616 F.3d at 549-56. In its opinion, the District of Columbia Circuit noted that the intent element "may . . . be necessary to distinguish between lawful and unlawful public service awards that nonprofit organizations bestow upon public servants." Id. at 551. The court went on to note that "the Department of Justice has consistently held that [Section 209(a)] applies only to payment made with the intent to compensate for Government services and that the requisite intent may not be inferred from the bestowal upon a public official of a bona fide award for public service or other meritorious achievement." Id. at 551 (quoting Letter from David H. Martin, Director, OGE, to a Designated Agency Ethics Official (July 26, 1983), 1983 WL 31714, at In this case, "[t]he district court permitted—but did not require—the jury to consider what services POGO subjectively intended the payment to be for, and what services Mr. Berman believed that the payment was for," but it did not "permit the jury to consider whether the defendants intended the payment to be for Berman's Government service." Id. at 556 (internal quotation marks omitted). The case was therefore re-manded with instructions to vacate the jury's verdict. Id. at 566.
On June 11, 2008, after the jury verdict but prior to the District of Columbia Circuit's reversal, the Agency proposed to remove Berman from employment. The Notice of Proposal to Remove charged Berman with "Misconduct," with a specification of "[u]sing public office for private gain in accepting $383,600 from a private organization in violation of 18 U.S.C. 209(a) for performing your official duties." The proposing official, Benjamin Simon, recommended a penalty of removal.
On January 13, 2009, Christine Baglin ("Baglin"), a Director in the Agency's Office of Policy Analysis, found the charge of misconduct proven by a preponderance of the evidence. In her Decision to Remove, Baglin reiterated the misconduct charge detailed in the proposal. Addressing Berman's inquiries as to why the Agency waited until 2008 to take action, Baglin wrote:
I believe that it would have been premature to take disciplinary action while the Department of Justice and the Inspector General were investigating your actions. The 2008 jury trial and verdict were the culmination of the investigation and yielded a definitive verdict from an independent factfinder [sic]. The determination made by the court proceeding was that you improperly received money based on your government work and because of your status as federal employee. Therefore, in light of the federal court decision, I believe a lot, in fact, has changed.
RA 45. Baglin then sustained the penalty of removal despite the presence of mitigating factors: althoughBerman had 26 years of federal service, no prior disciplinary record, and a history of "superior" ratings, Baglin deemed the "egregiousness of [Berman's] conduct" so severe as to negate any ameliorative effect. RA 47.
Berman appealed the Agency's decision to the Board. On August 18, 2009, an administrative judge issued an initial decision affirming the Agency's action. Berman v. Dep't of the Interior, Docket No. DC-0752-09-0294-I-1, slip op. at 1 (M.S.P.B. Aug. 18, 2009) ("Initial Decision"). Applying collateral estoppel, the administrative judge found that the Board was precluded from reviewing the district court's determination that Berman violated Section 209(a), notwithstanding Berman's then-pending appeal to the District of Columbia Circuit. Id. at 6-8. The administrative judge then found that Berman "had an intent to use his public office for private gain." Id. at 10. The...
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