United States v. Project on Government Oversight, 766 F.3d 9

Appellant was a government employee who secretly entered an agreement with Project on Government Oversight (POGO) and accepted a payment from POGO while performing work related to POGO’s qui tam litigation against his agency.
He did not personally disclose the agreement or payment to anyone at his agency.
The district court found that appellant breached his fiduciary duty and violated federal ethics standards, and ordered disgorgement of the full payment and dismissed two remaining counts without prejudice.
Appellant appealed the orders dated March 21, 2012 and January 29, 2013; the D.C. Circuit considered the record and briefs and took judicial notice of official court records.
On remand issues and penalties, appellant failed to renew arguments for a lesser penalty and did not present evidence that full disgorgement was punitive or that there was clear and convincing government misconduct.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellant breached a fiduciary duty and violated ethics regulations by accepting payment and not disclosing it while performing related work	Appellant contended his conduct did not amount to a breach or that the remedy was excessive	Government argued nondisclosure and acceptance of payment created an appearance of impropriety and violated ethics rules and fiduciary duties	Court held appellant breached his fiduciary duty and violated ethics regulations, affirming liability
Whether disgorgement of the entire payment was improper or punitive	Appellant argued disgorgement was excessive and punitive	Government argued full disgorgement was an appropriate remedy and appellant offered no evidence to show punitive effect	Court affirmed disgorgement, noting appellant failed to renew or support a lesser-penalty claim and offered no evidence that disgorgement was punitive
Whether government misconduct during trials warranted relief	Appellant alleged government misconduct	Government denied misconduct or argued allegations were irrelevant/forfeited	Court found no clear and convincing evidence of misconduct and deemed many arguments irrelevant or forfeited
Whether dismissal without prejudice of two remaining counts was an abuse of discretion	Appellant argued dismissal harmed his rights	Government argued dismissal was proper absent clear legal prejudice	Court affirmed dismissal without prejudice, finding no clear legal prejudice shown

Veg-Mix, Inc. v. U.S. Dep't of Agric., 832 F.2d 601 (D.C. Cir. 1987) (courts may take judicial notice of official court records)
United States v. Carter, 217 U.S. 286 (U.S. 1910) (fiduciary-duty principles applied)
United States v. Kearns, 595 F.2d 729 (D.C. Cir. 1978) (fiduciary-duty analysis)
SEC v. First City Fin. Corp., 890 F.2d 1215 (D.C. Cir. 1989) (standards for determining whether disgorgement is punitive)
Shepherd v. Am. Broad. Cos., 62 F.3d 1469 (D.C. Cir. 1995) (standard for proving government misconduct)
Students Against Genocide v. Dep't of State, 257 F.3d 828 (D.C. Cir. 2001) (reply-brief arguments generally forfeited if raised first in reply)
Kellmer v. Raines, 674 F.3d 848 (D.C. Cir. 2012) (dismissal without prejudice not an abuse absent clear legal prejudice)