United States of America v. the Project on Government Oversight
839 F. Supp. 2d 330
D.D.C.2012Background
- Remand from D.C. Circuit; jury found §209 violations by Berman and POGO, but Circuit vacated on improper intent instruction and remanded; on remand government seeks summary judgment against Berman; Berman cross-moves; trial record shows payment to Berman and testimony on whether payment was for government duties or whistleblowing; district court previously denied summary judgment on Count I and III; court now analyzes whether new evidence warrants summary judgment and whether fiduciary duty claim warrants disgorgement; court holds two undisputed instances of work on oil royalty valuation after agreement to share proceeds; court determines 5 C.F.R. ethics rules govern fiduciary duty; court grants summary judgment on Count III and denies on Count I; final posture includes potential remand for Count III relief and costs
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the new evidence entitle summary judgment on Count I? | Berman's post-trial statements show lack of intent to compensate for government work | Berman's earlier trial testimony and ongoing inconsistencies prevent summary judgment | No; genuine issues remain regarding intent and whether payment was for government duties or whistleblowing |
| Should Brady apply to this civil §209 case to require disclosure of exculpatory evidence? | Brady applies in civil cases when government acts with potential criminal implications | Brady does not apply in this civil §209 action; civil discovery rules suffice | Brady does not apply here; not a denaturalization/extradition or civil commitment context; discovery rules moot the issue |
| Is there merit to Count III summary judgment for breach of fiduciary duty? | Berman breached fiduciary duties by accepting and not disclosing a financial interest in POGO litigation | If fiduciary duty requires actual damage, issue disputed; also question of disclosure adequacy | Yes; summary judgment granted on Count III; disgorgement of $383,600 ordered |
| Is Berman entitled to dismissal based on alleged coaching or perjury by DOJ? | DOJ misconduct warrants dismissal or sanctions | No clear evidence of coaching or suborning; testimony credibility contested | No; motions denied; no basis to dismiss or sanction based on the record |
Key Cases Cited
- Crandon v. United States, 494 U.S. 152 (1990) (statutory canons; lenity in civil context)
- Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985) (intent required to render meaningful the absence of mens rea in civil statutes)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (Sup. Ct. 1986) (summary judgment standard; evidence must be more than colorable)
- Skare v. Extendicare Health Servs., Inc., 515 F.3d 836 (8th Cir. 2008) (whistleblowing within job duties; duties may include reporting violations)
- Kenealy, 646 F.2d 699 (1st Cir. 1981) (federal common law fiduciary duty; appearance of conflict sobres)
- Carter v. United States, 217 U.S. 286 (1910) (fiduciary duty; appearance of conflict requires restitution)
- United States v. Sheehan, 512 F.3d 621 (D.C. Cir. 2008) (discusses mens rea presumption in §209 context)