Berman vs Department of Interior - Case Study Example

Berman Vs Department of Interior Case Berman Vs Department of Interior Case ment of Facts Robert A. Berman summarily moved to reverse the judgment on Merit Systems Protection Board for Berban vs. Dep’t of Interior, of case No. DC0752090294-1-1. The court instructed the Board to order Department of Interior in order to compensation to Berman for the losses as well as restore to him his prior position in the Department. However, the department opposed (Robert). Berman was working an employee at the department, where he worked as an economist. In 1998, Berman had accepted a monetary award from Project on Government Oversight (POGO) on an assignment he has done for the qui tam action that involved payments for extraction of oil on the federal land. United States, subsequently, filed a civil suit in United States District Court for District of Columbia, where it asserted that Berman and POGO violated the 19 U.S.C & 18 U.S.C. § 209 that prevents private parties and government for making compensations and people or employees from receiving the compensation while in government service. In 2008, the jury found out that Berman and POGO violated the law. Nevertheless, Berman and POGO appealed seeking for review by Court of Appeal in United States for District of Columbia Circuit (Ralph, 2002). However, the government opposed the move by saying that the two parties violated 18 U.S.C. § 209 that prevents any person from giving or receiving supplementation of salary or contribution as compensation for services during an employee of the officer at the executive branch. Furthermore, Berman was charged with Unjust Enrichment (UE) and Breach of Fiduciary Duty (BFD). District Court granted the motion by government for summary judgment for violating 18 U.S.C. § 209(a). The court reversed and remanded the matter to District Court for more proceedings to come up with a resolution of the disputed facts of the existence of intentional direct link between the official responsibilities of Berman and payments made by POGO. On remand, District Court accepted the argument by government of 18 U.S.C. § 209(a) being a strict legal statute and termed the parties’ intent as irrelevant. The court kept the briefing schedule for the case pending with the disposition in the United State vs. POGO, 616 F.3d 544. The Court of Appeal, in the decision for District of Columbia Circuit, remanded and vacated in part for a new trial. This concluded the intent of the required element of the violation of 209 of the failure of the jurys instruction from District Court in instructing on intent element (Cooper, 2006). According to Berman, the United States vs. POGO controlled disposition of the case. On the other hand, according to United States, United State vs. POGO does not take part in the disposition of the case. However, the court deemed it better for parties to raise their issues in brief. It was, therefore, order accordingly that: First, the motion by Berman for reversal of summary was denied without any prejudice to parties that raised arguments in those briefs. The stay for a briefing schedule was lifted. The opening brief for Berman was scheduled 30 days after filing the order. Second, any pending motions were denied as moot. Ethics Perspective The pursuant of the Courts order of third April 2013, the petitioner Berman A. Robert moves to Court seeking reversal of the decisions made on 29th January 2013 and 21st March 2012 by John Bates from United States District Court for District of Columbia that granted Appellee Plaintiff motion for a summary of the statement. According to the motion, the district court identified that the actions by Berman never conflicted with those of his principles, there was a failure by district court in considering the intention of Berman and there exists the genuine dispute pertaining material facts. The court made a mistake by not dismissing the complaint by governments prior court 1 of violating 18 U.S.C. § 209. In this case, the government failed in retrying its complaint because of some internal budgetary reasons. The district court found that an improper grant to the government dismissal without prejudice was not in any way going to disadvantage Berman (Cooper, 2006). As a matter of law, POGO and Berman renewed the motions for their judgment and moved new trial. However, the government dismissed the motions by imposing penalties of $383,600 and $120,000 to Berman and POGO respectively. On the other hand, District Court denied the motion by government to disgorge and dismissed the court, and on appeal, the court concluded that the intent of the defendant in giving or receiving compensation for the services in government is termed as an offense. According to the court, offenses requiring no mens rea are generally disfavored. In response, Berman disputed the conclusion by the court that the reasons that made him liable under § 209(a) supported the findings of is breach of fiduciary duty. Nevertheless, the government failed to respond to the appeal by Berman. To him, Berman considered the government to have abandoned common law issue (DelPo, Lisa, & Janet, 2003). Accountability perspective Failure of government and District Court to show conflict The District Court and Government relied on heavily of the Kenealy and Carter in their establishment of BFD by Berman. "The Federal protections law against BFD extends to the relationship between the principal and agent arising from the federal employment in United States vs. Kenealy, 646 F.2d 699, 703 (1st Cir. 1981) that quoted the United States vs. Kearns, the 595 F.2d 729, 732 (D.C. Cir. 1978)). In United States v. Carter, 217 U.S. 286, 306 (1910), which was a seminal case relating to breach by the federal employee where the supreme court explained that the larger interest in public justice may not, at any circumstance, tolerate any public official to retain advantage or profit that may be realized through acquiring interest in conflict related to his fidelity when an agent. Taking any gratuity, benefit or gift in violation of duty, or acquisition of interest affecting his principal lacking full disclosure is regarded as a betrayal of trust and breach of confidence, requiring accountability for all that is received to the principal. However, Bermans interest can be considered to be a contrast to the Kenealys as it was aligned to the interest of the principal. From the records, it is indicated that Berman was advocating for use of NYMEX prices to compute oil royalty violations since 1986, long before liaison with POGO. The government did not also identify any conflict of interest between Berman and Government since there existed no factual conflict (Johnson & Bridgmon, 2009). Failure of district court in considering the interest of Berman After the acknowledgement of POGO IX, the conclusion seemed to be premised largely on liability of Berman under § 209(a). The issue was left to reconsideration of the court on remand quoting the POGO IX at 562 n. 20. According to the court, the presumption of mens rea element was applicable in civil law suit. The court noted necessity of the intent requirement in separation wrongful from innocent conduct; Id. at 550. However, during the fact finding, the court ignored context of the occurrence of the facts and denied the testimony on the intent. Instead, the offenses requiring no mens rea were disfavoured. However, regarding the BFD, Supreme Court held on the proof that intent to deceive, fraud or manipulate was critical, hence dismissing the satisfaction of the element of proof of breach of duty or negligence to inquire. Intent is, however, a crucial for BFD claims, but when not clearly indicated, BFD may fail. A deceitful intent required wilful intent and knowledge on defraud. Certainly, there existed no evidence of Berman having such an intent. Nevertheless, even for standard of general intent, there exists no evidence of Berman’s awareness of his actions that brought him under the ambit of 5 C.F.R. § 2635.101(b). The deputy ethics official, Ms. Linda Sullivan, acknowledged that the ethics training on Bermans office comprised of a copy of Employee Guide that was supposed to enable all employees meet their annual training requirement. The Exhibit A, Affidavit at 2 found no evidence of Berman receiving a copy of Employee Guide. In addition, Berman was never charged with any violation either through his personnel action or civil action over the 10 years he was working with the Department of Interior (Lushbaugh & Paul, 2009). Granting of summary judgment by District Court without solving completely the disputed facts The summary judgment remains appropriate only when there are no genuine disputes of the material facts. However, in Bermans case more than five facts still remained disputed. First, the agreement can be considered as an investment interest, second, the award can be considered as undisclosed payment, third, the assignment of Berman was in such a way to impact work by POGO, fourth, the duties by Berman included the investigations of fraud, and fifth, POGO and Berman have been motivated by personal gain after POGO decided to file a qui tam suit. The District Court failed by failing to consider the responsibilities by Berman in the analysis of policy included a fraudulent behaviour by the regulated entities. However, this is demonstrably false (Marriott, 2012). Prevention In the case, the appellant was GS-15 economist removed from his position on charges of misuse of office when he accepted a private gain of $383,600 from a non-governmental organization. According to the agency, no person should assume that the federal employee could fail to accept such a huge cash from the outside entity for his exemplary performance of his duty. The parties were determined to be civilly liable for violating the 18 U.S.C. § 209(a). According to the appellant, the misuse of office could only be charged when there was a summary of intent (Potter & Kirk, 2008). Preventing Berman’s motion for dismissal The District Court denied the motion for dismissing the motion by Berman with prejudice. The Court concluded that Berman was not to suffer the legal prejudice. Legal prejudice implies something other than necessity faced by the defendant for defending another action. District court would have been correct if they considered only the financial costs involved in defending a future action. Nevertheless, in pro se by Berman when approaching 70 and the declines in the health prejudice meant that the ability of a pro se in undertaking the defence beyond financial costs was healthy. The government claimed that a major reason making it not to retry the case was based on resource allocation where it argued to have made an internal decision for other better things (Cooper, 2006). The government wished to preserve its retry option indefinitely when it had nothing else better to accomplish with its budget. Conversely, the dismissal of the prejudice would have allowed the government to retry in the move towards uncovering the evidence. No any public official is required to use his position in obtaining an economic interest for personal gain. However, in case this happens, it must have a written statement for the matter requiring a decision or any potential conflict. A copy of the statement was to be taken to the presiding officer for deliberations. In this case, Berman violated the law 18 U.S.C. § 209(a). According to the law, outside royalties generally are not intended for compensation because it is unlikely that a payor would express the intent to compensate for the government service. Therefore, from my evaluation based on the law, the circumstances presented indicate that the two parties were motivated by desire for personal gain rather than compensation. Presumably, POGO was interested in acquiring the rights for the plan, if the desire was genuine, then it would have considered both the value of the invention by Berman to the government and time used in inventing (Robert, 2010). Any payments made to a government employee must be considered as part of the federal employment contract known to the government and not supposed to implicate central concerns of the law. The § 209 prevents bitterness and suspicion among fellow employees when one receives compensation from an outside source. In the pre-trial remand motions, both government and Berman moved for summary judgment on violation matters § 209(a), and the government moved also for summary judgment of BFD complaint of 2008 trial. Berman filed the dismissal motion with sanctions that stemmed from the alleged ethical misconduct by the government. The government failed in informing the court about the false testimony given by its principal witness during the 2008 trial. In this regard, the government abandoned the BFD complaint about failing to respond to his brief challenge in court. Nevertheless, the District Court denied the motions by Berman for summary judgment of violating the § 209(a) and granted summary judgment by government regarding the BFD claim. Furthermore, Bermans Motion for dismissal on alleged ethical misconduct by government was dismissed as it failed conclusively to ... falsely. This, therefore, could not have prevented similar problems in the future. However, the Court and Jury must deliver judgment based on case presented rather than using another case to offer judgement. For instance, use of Kenealys case can just be used as a reference, but not as a fact for giving out the judgment against Berman and POGO (Potter & Kirk, 2008). Political and Bureaucratic Environment In the case presented, the government had moved on summary judgment of section 209(a) with the motion being granted by district court. However, the finding was reversed by District of Columbia on the issue whether the issuing of the compensation by POGO was indeed for government service. Basically, the government and courts presented the major political environments. The court is a branch of judiciary and had to deal with the case from the department of the interior in the same government. The court had to investigate on the issue. There existed no Employee Guidelines in Bermans office, of which this is contrary to the requirements of all government offices where employees are supposed to be given the Employee Guideline (Cooper, 2006). In making the final decision on firing Berman, the pending civil case by the government delayed the case for years. However, the agency upheld that, despite Berman never being involved in any disciplinary action for 26 years as a federal and government employee, he was to be dismissed. This was inappropriate in law, since there still existed mitigating factors. Accordingly, government never needed to prove the intent, and as a result, the defendants were not allowed to offer any evidence that addressed the intent. United States v. Project on Government Oversight, Civil Action No. 03-0096 (D.D.C. Feb. 4, 2008). (POGO VI) When the trial lasted for several days and jury returned a verdict of both Berman and POGO violated 18 U.S.C. § 209(a) (Johnson & Bridgmon, 2009). On the other hand, the bureaucratic environment involvement in the case was the department of the interior. Berman was working for the department as an economist. The department sought withdrawal of Berman from the misconduct on the basis of him accepting the award. However, the administration sustained the removal of the department, though they relied in part on the verdict of the jury. The Board denied the petition for review compelling Berman to seek for the review of the decision by the Board for the court. Berman had proposed the idea on how to handle the oil royalties but to prevent cheating, but the department ordered him not to work on the oil valuations. However, his market price was adopted by many states and the department never thought valued his idea so much. The congress seemed to play a major role in the money that was being lost to oil companies. Therefore, the department could unlikely play a major role in facilitating the evidence, rather, they inhibited any truth towards freeing Berman (Robert, 2010). Media and Other Non-Governmental Entities The project on government oversight is a non profit organization that accorded Berman an award for his exceptionally good work intending that Berman would play a role in preventing the oil companies from making any underpayments to Mineral Management Service for the oils that were extracted from the federal lands. Before making the award, POGO had informed department of justice of its move and claimed that Berman was aware and they held no objection. In 1998, Berman received a check worth $ 383, 600 claiming that it was Public Service Award alongside a letter explaining that the award was because of his exceptional public-spirited work in stopping and exposing the underpayment of royalties by oil companies for producing crude oil on Indian and Federal lands. On the other hand, the case was reported by various media; IEC journal, People from US office of Government Ethics and USCA Case reports among others. The media seemed to hold a common ground regarding the case presented. The media reviewed the case from the start, explaining the reasons for the case, people involved and all decisions that were involved. Possibly, the media had to follow the language of the law within taking any side or raising any questions regarding the legitimacy of the whole process. The media was mainly obligated in informing the public on whatever was transpiring between the parties involved. Such obligations originate from US copyright Law (Cooper, 2006). Historical context Similar cases that preceded the case between Berman and Department of Interior include, first, Ernst & Ernst vs. Hochfelder, 425 U.S. 185 (1976) which involved allegations of section 10(b) of Security Exchange Act when Supreme Court held that the scienter was needed since statute used words as manipulative devices to prescribe a conduct different from negligence. The court believed that manipulative acted as an art in connection with securities, in markets and connoted wilful or intentional conduct to defraud or deceive investors through control of the prices for the securities. This case was cited to portray and emphasize on the need for intent in breach of Fiduciary Duty, not that of § 10(b) for the Securities and Exchange Act applies necessarily, notwithstanding the claim by the District Court and Government that sharing of the agreement by POGO constituted investment interest. However, the Court of Appeal held that District Court never erred in failing to instruct the jury that the breach of Fiduciary Duty under the California law required the intent to deceive. Others include the U.S. v. Carter, supra; U.S. v. Kenealy, supra; and U.S. v. Kearns, supra and Catskill Development, L.L.C. v. Park Place Entertainment Corp., 286 F. Supp.2d 309, 319 (S.D. N) among others (DelPo, Lisa, & Janet, 2003). Basically, the cases involved investigations and reforms as they were handled in reference to sections of the law. The cases could have been prevented as it involved following the sections of the law. For instance, in the example presented, if only § 10(b) for the Securities and Exchange Act was followed, then the case could have been avoided. The lessons from the cases were used in the case study. For instance, the Kenealy case illustrated the seriousness of BFD and the judgment involved while that of Ernst illustrated the seriousness of summary of intent if BFD (Lushbaugh & Paul, 2009). Conclusion Robert Berman worked as a GS-15 economist at the Department of Interior in United States where he helped in oversight of government projects. POGO pursued false claim of qui tam in texas and argued that oil companies had defrauded the government in US where the oil companies underpaid their royalties on oil extracted from federal lands. This turned to be a lucrative situation for POGO, especially when government intervened. The case presented is, therefore, on Berman v. Department of the Interior at C.A.F.C. No. 2010-3052, 11/7/11 dealing with the effort of the agency in firing Berman for being involved in a scandal with POGO. The two, POGO and Berman were charged with violating the 18 U.S.C. 209(a). Ethics in the case have been reviewed both in dimension of a government employee for Berman and accountability for POGO and the parties involved. Accountability in the case is of critical importance for the district court, government and POGO. It was unfortunate that many parties involved failed in accounting for the legalities of the case as stipulated by law. The political and bureaucratic environments were instrumental in delaying the case and propelling the controversy. Most of the judgment had been propagated from previous cases such as those of Kenealy and Ernst, which were used as references. However, from the case, it is evident that the agency may regret the failure to follow the advice by DOJ of ‘proceeding slowly on the removal action since the verdict by a jury could have been appealed and overturned. References Cooper, T. (2006). The Responsible Administrator: An Approach to Ethics for the Administrative Role. San Francisco: Jossey-Bass, A John Wiley & Sons Imprint. DelPo, A., Lisa, G., & Janet, P. (2003). Dealing with Problem Employees: A Legal Guide. Berkeley, CA: Nolo. Johnson, B. R., & Bridgmon, P. (2009). Depriving Civil Rights: An Exploration of 18 U.S.C. 242 Criminal Prosecutions 2001-2006. Criminal Justice Review 34(2), 196-209. Lushbaugh, C., & Paul, B. (2009). Criminal Investigation: Basic Perspectives. Upper Saddle River, NJ: Pearson/Prentice Hall. Marriott, D. (2012). Trial by Jury. New York, NY: Practising Law Institute. Potter, T., & Kirk, L. (2008). Political Activity, Lobbying Laws, and Gift Rules Guide. Eagan, MN: Thomson/West. Ralph, S. (2002, July 29). Money, Politics and Unions. Retrieved March 24, 2014, from http://www.fedsmith.com/articles/articles_display.php?a=3183&p=1 Robert, A. B. (2010). See Berman v. Department of the Interior, C.A.F.C. No. 2010-3052 (nonprecedential). Retrieved November 7, 2011, from http://www.cafc.uscourts.gov/images/stories/opinions-orders/10-3052.pdf Read More