Berman v. Department of the Interior , 447 F. App'x 186 ( 2011 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
ROBERT A. BERMAN,
Petitioner,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
__________________________
2010-3052
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DC0752090294-I-1.
___________________________
Decided: November 7, 2011
___________________________
ROBERT A. BERMAN, Vienna, Virginia, pro se.
JOSHUA E. KURLAND, Trial Attorney, Commercial Liti-
gation 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 Direc-
tor.
__________________________
BERMAN v. INTERIOR 2
Before BRYSON, MAYER, and GAJARSA, Circuit Judges.
PER CURIAM.
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 em-
ployment. 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.
BACKGROUND
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 Gov’t
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 Over-
sight, 616 F.3d 544 (D.C. Cir. 2010) (“POGO IX”). Never-
theless, a brief recitation of the facts and procedural
posture is in order.
I.
Berman was employed as an Economist, GS-0110-15,
in the Office of the Secretary at the United States De-
3 BERMAN v. INTERIOR
partment of the Interior (“Agency”). Beginning in 1994,
Berman was contacted by representatives of the Project
on Government Oversight (“POGO”), a non-profit organi-
zation “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 fed-
eral 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 Inte-
rior. After POGO filed suit, the United States intervened
and entered into settlements with the oil company defen-
dants that resulted in a recovery of $440 million.
Prior to filing the qui tam actions, Brian asked Ber-
man 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-
BERMAN v. INTERIOR 4
panies’ underpayment of royalties for the production of
crude oil on federal lands.” Pogo IX, 616 F.3d at 546.
II.
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:
Whoever receives any salary, or any contribution
to or supplementation of salary, as compensation
for his services as an officer or employee of the ex-
ecutive branch of the United States Government .
. . from any source other than the Government of
the United States, except as may be contributed
out of the treasury of any State, county, or mu-
nicipality; or
Whoever . . . makes any contribution to, or in any
way supplements, the salary of any such officer or
employee under circumstances which would make
its receipt a violation of this subsection--
Shall be subject to the penalties set forth in [18
U.S.C. § 216].
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] government
5 BERMAN v. INTERIOR
service.” 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 Ber-
man 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 Colum-
bia 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 *1). In this case, “[t]he district court per-
mitted—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 con-
sider 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-
BERMAN v. INTERIOR 6
manded with instructions to vacate the jury’s verdict. Id.
at 566.
III.
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 perform-
ing 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 reiter-
ated 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 investigat-
ing 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 be-
cause of your status as federal employee. There-
fore, 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: although
7 BERMAN v. INTERIOR
Berman had 26 years of federal service, no prior discipli-
nary 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 administrative judge next found that Berman failed
to prove his affirmative defenses of harmful procedural
error and agency retaliation for disclosures protected by
the Whistleblower Protection Act. Id. at 10-19. Finally,
the administrative judge determined that Berman’s
penalty was neither disparate nor unreasonable. Id. at
19-24. Berman then filed a petition for review requesting
that the Board reconsider the administrative judge’s
initial decision.
The Board grants a petition for review only where the
claimant presents new or previously unavailable evidence
or the administrative judge makes an error interpreting a
law or regulation. 5 C.F.R. § 1201.115. In this case, the
Board found that Berman failed to prove either. Final
Order at 1. Accordingly, Berman’s petition for review was
denied, and the administrative judge’s initial decision
became final. Id. at 2.
BERMAN v. INTERIOR 8
Berman appealed the Board’s decision to this court,
and the parties agreed to stay the appeal pending the
outcome of Berman’s appeal of the related civil verdict.
The District of Columbia Circuit’s mandate in that appeal
has now issued, affirming in part, reversing part, and
remanding to the United States District Court for the
District of Columbia with instructions to vacate the jury’s
verdict and to conduct further proceedings in accordance
with the opinion in POGO IX. Various motions are cur-
rently pending in the district court proceeding, but no new
judgment has been entered.
This court has jurisdiction over Berman’s petition
pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C.
§ 1295(a)(9).
STANDARD OF REVIEW
Our review of the Board’s decision is limited. By
statute, we must affirm the Board’s holding unless we
find it to be: (1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence. 5 U.S.C. § 7703(c); Barrett v. Soc. Sec. Admin.,
309 F.3d 781, 785 (Fed. Cir. 2002). Consistent with that
standard of review, we review de novo the availability of
collateral estoppel, and we review the Board’s application
of that doctrine for abuse of discretion. See Phillips/May
Corp. v. United States, 524 F.3d 1264, 1267 (Fed. Cir.
2008); Applied Med. Res. Corp. v. U.S. Surgical Corp.,
435 F.3d 1356, 1360 (Fed. Cir. 2006).
DISCUSSION
I.
As his principal argument on appeal, Berman argues
that the Board’s order must be reversed because it was
9 BERMAN v. INTERIOR
premised on the partially-reversed judgment in United
States v. Project on Government Oversight, No. 03-0096
(D.D.C. Feb. 11, 2008) (ECF 99). In response, the Agency
argues that the “misconduct” charge levied against Ber-
man did not require violation of 18 U.S.C. § 209(a) and,
even if it did, the Board independently determined that
Berman violated the statute. Respondent Br. 19-23. We
begin by analyzing the Agency’s charge against Berman.
A.
The Notice of Proposal to Remove states, under the
heading “Charge – Misconduct”:
Specification: Using 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.
As discussed above, you accepted payment of
$383,600 from POGO for performing your official
duties. This conduct was found to be in violation
of 18 U.S.C. § 209 as found by a jury verdict in
February 2008 and upheld by the District Court
judge presiding over the case on April 10, 2008.
Your acceptance of such funds is unacceptable
ethical behavior for a high ranking government
employee and your behavior was found to violate a
federal statute.
Accordingly I am proposing the penalty of removal
for your misconduct based on my consideration of
the factors set forth below.
RA 39. Similarly, the Decision to Remove states that
“[t]he Proposal lays out a charge of misconduct, with the
specification of using public office for private gain in
accepting $383,600 from a private organization in viola-
BERMAN v. INTERIOR 10
tion of 18 U.S.C. 209(a) for performing your official du-
ties.” RA 44.
When, as here, general charging language is used, i.e.,
“misconduct,” due process requires the Board to “look to
the specification to determine what conduct the agency is
relying on as the basis for its proposed disciplinary ac-
tion.” Lachance v. Merit Sys. Prot. Bd., 147 F.3d 1367,
1371-72 (Fed. Cir. 1998) (citing Huisman v. Dep’t of Air
Force, 35 M.S.P.R. 378, 380-81 (1987)). Thus, “where the
specification contains the only meaningful description of
the charge . . . the agency must prove what it has alleged
in the specification.” Id. Consistent with that require-
ment, the Board reviewed the Notice of Proposal to Re-
move and concluded that the sole specification underlying
the charge was “[u]sing public office for private gain in
accepting $383,600 from a private organization in viola-
tion of 18 U.S.C. 209(a) for performing your official du-
ties.” Initial Decision at 4. The Board then analyzed the
violation of Section 209(a) as an element of the charged
misconduct. See id. at 5-8; Hr’g Tr. 32:17-21. We agree
with the Board that violation of Section 209(a) is an
element of the charged misconduct. 1
1 The Agency’s “Prehearing Submission” to the
Board characterized the issue before the Board as
“[w]hether the Board should affirm the Agency’s decision
to remove [Berman] for being found by a court to have
violated 18 U.S.C. § 209(a).” Although we do not interpret
the specification as explicitly predicated upon the jury’s
finding of liability, we interpret the Agency’s “Prehearing
Submission” as judicially estopping the Agency from
arguing that violation of Section 209(a) was not an ele-
ment of the charged misconduct. See Trustees in Bank-
ruptcy of N. Am. Rubber Thread Co. v. United States, 593
F.3d 1346, 1353-57 (Fed. Cir. 2010); Key Pharms. v.
Hercon Labs Corp., 161 F.3d 709, 714-15 (Fed. Cir. 1998).
11 BERMAN v. INTERIOR
B.
Having properly determined that violation of 18
U.S.C. § 209(a) was an element of the charged offense, the
Board relied on the preclusive effect of the district court
litigation to find that Berman violated the statute. Initial
Decision at 7-8. The Board similarly relied on the district
court’s decision to find that Berman received actual
private gain. Id. at 7 (citing Mann v. Dep’t of Health &
Hum. Servs., 78 M.S.P.R. 1, 8 (1998)). But the application
of collateral estoppel is dependent upon a final judgment
in the earlier matter. 18A Charles Alan Wright et al.,
Federal Practice and Procedure § 4432 (2d ed. 2002).
Where a judgment—or a part thereof—is reversed or
vacated on appeal, there is no final judgment as to issues
not actually resolved by the appellate court. Id. There-
fore, the matters reversed or vacated are not subject to
preclusion until such time as a new judgment is entered.
See, e.g., In re Microsoft Corp. Antitrust Litigation, 355
F.3d 322, 328-29 (4th Cir. 2004) (reviewing the preclusive
effect of a district court judgment affirmed in part and
reversed in part by the District of Columbia Circuit in a
parallel litigation). Critically, we review the preclusive
effect of a prior judgment as of the time the case in which
preclusion was asserted is before this court. See, e.g.,
Lulirama Ltd. v. Axcess Broadcast Servs., Inc., 128 F.3d
872, 875 n.2 (5th Cir. 1997).
In POGO IX, the District of Columbia Circuit affirmed
the district court’s denial of the defendants’ post-trial
motions for judgment as a matter of law or, in the alter-
native, for a new trial, pertaining to jury instructions
regarding lump-sum payments and the scope of Berman’s
duties. 616 F.3d at 560-62. The court also affirmed the
district court’s interpretation of the relevant penalty
provision, 18 U.S.C. § 216(b). Id. at 562-66. But it re-
versed the district court’s judgment as to POGO’s and
BERMAN v. INTERIOR 12
Berman’s liability based on the district court’s failure to
properly instruct the jury on the issue of intent. Id. at
548-60. Although the District of Columbia Circuit re-
manded for “further proceedings consistent with [its]
opinion,” id. at 566, it implicitly ordered a new trial by
declining to reach evidentiary disputes and challenges to
the sufficiency of the evidence “[b]ecause it is not possible
to predict what the record will look like after a new trial,”
id. at 562 n.20. Indeed, the court remanded on the issue
of Berman’s liability for breach of fiduciary duty
“[b]ecause that conclusion appears to have been largely
premised on Berman’s now-vacated liability under §209(a)
. . . .” Id. at 562 n.20. Therefore, absent an independent
determination of Berman’s liability by the Board, we must
vacate the Board’s final decision and remand for addi-
tional proceedings. See Parikh v. Dep’t of Veterans Af-
fairs, 110 M.S.P.R. 295, 301, 305 (2008) (vacating and
remanding for additional proceedings following erroneous
application of collateral estoppel).
The Agency argues that the Board did, in fact, make
an independent determination that Berman violated
Section 209(a). Respondent’s Br. 21-22. We disagree.
The record indicates that the Board denied a motion by
Berman to compel discovery, stating:
[I]t became clear in the conference call that the in-
formation [Berman] sought was information rele-
vant to the underlying charges which were
involved in the civil action filed against [Berman]
by the Department of Justice. As previously dis-
cussed with the parties, and summarized in the
summary of prehearing conference, the doctrine of
collateral estoppel appears to be applicable to this
appeal. Accordingly, the merits of the underlying
action are not at issue before the Board. Rather,
the hearing in this appeal is limited to a penalty
13 BERMAN v. INTERIOR
determination. [Berman] was unable to articulate
. . . how such information may be relevant to the
penalty determination. Accordingly, it is my rul-
ing that no additional discovery will be ordered.
Notice and Order Regarding Discovery (June 17, 2009)
(emphasis added). And during the hearing, the adminis-
trative judge sustained the Agency’s objection to testi-
mony regarding the scope of Berman’s duties, stating
“[w]e’re not re-litigating that . . . .” Hr’g Tr. 32:5 – 32:22.
Finally, in the Initial Decision, the administrative judge
stated that “the application of the doctrine of collateral
estoppel precludes any review by the Board of the findings
of the court that [Berman] violated [Section 209(a)].”
Initial Decision at 8. Taken individually or in combina-
tion, the administrative judge’s statements and rulings
clearly demonstrate that the merits of a Section 209(a)
violation were not before the Board. 2
C.
Seeking to salvage its position, the Agency argues
that the existing record provides grounds on which the
Board could conclude that Berman committed the charged
misconduct. Agency Br. 26-27. Because the record was
circumscribed based on the preclusive effect of the district
court’s judgment, we disagree.
First, as noted above, Berman sought to compel dis-
covery of information that the administrative judge found
2 Contrary to Berman’s assertion, Reply Br. 1, the
Board may adjudicate whether or not a Government
employee has engaged in criminal conduct. See, e.g., King
v. Nazelrod, 43 F.3d 663 (Fed. Cir. 1994) (analyzing the
elements of a charge of “theft”); Wiemers v. Merit Sys.
Prot. Bd., 792 F.2d 1113 (Fed. Cir. 1986) (upholding
removal despite reversal of conviction when removal was
based on underlying conduct).
BERMAN v. INTERIOR 14
“relevant to the underlying charges.” The administrative
judge nevertheless denied Berman’s motion because
“collateral estoppel appears to be applicable” and “the
merits of the underlying action are [accordingly] not at
issue before the Board.” In the absence of collateral
estoppel or a valid objection, the administrative judge’s
refusal to compel discovery of relevant information was an
abuse of discretion. See Baird v. Dep’t of Army, 517 F.3d
1345, 1350-51 (Fed. Cir 2008). Second, the administrative
judge repeatedly limited testimony relevant to the under-
lying Section 209(a) violation. See, e.g. Hr’g Tr. 54:22 -
55:18. Indeed, the administrative judge sustained the
Agency’s objection to questions about the Agency’s testi-
mony to Congress regarding the scope of Berman’s duties,
stating “[w]e’re not re-litigating that.” Hr’g Tr. 32:5 –
33:14. Absent the preclusive effect of the district court
judgment, this general exclusion of evidence relevant to
the merits of a Section 209(a) violation was also an abuse
of discretion. Having prevailed in circumscribing the
record, the Agency cannot now argue that the record is
sufficient. See Frampton v. Dept of Interior, 811 F.2d
1486, 1489 (Fed. Cir. 1987) (improperly circumscribing
presentation of evidence effects denial of petitioner’s right
to a full and fair hearing). We therefore vacate the
Board’s final decision and remand for additional proceed-
ings on the issue of Berman’s violating 18 U.S.C. § 209(a)
vel non.
II.
Berman next challenges the Board’s findings on the
issue of intent with respect to the offense of using public
office for private gain. In its Initial Decision, the Board
concluded that the charge of using public office for private
gain required proof of intent. Initial Decision at 8. The
Board then identified the relevant mens rea as “knowingly
and willfully.” Id. (citing Burkett v. Gen. Servs. Admin.,
15 BERMAN v. INTERIOR
27 M.S.P.R. 119, 122 (1985)). Neither party appeals the
Board’s conclusion that intent is a required element of
using public office for private gain; we therefore accept it
without comment.
On appeal, Berman argues that the Board failed to
consider evidence of his consultation with various advi-
sors before finding that he had the requisite level of intent
based on reckless disregard for the truth. In response,
the Agency cites to a statement in the Initial Decision
that “[a]ll of the evidence and argument offered by both
parties has been fully considered.” Initial Decision at 5.
Conscious that pro se petitioners “are not required to file
artful, legally impeccable submissions in order to proceed
on appeal,” Hilario v. Sec’y, Dep’t of Veterans Affairs, 937
F.2d 586, 589 (Fed. Cir. 1991), we construe Berman as
broadly challenging the Board’s findings on intent.
The Board’s findings on intent were as follows:
As noted above, the appellant’s intent may be in-
ferred from evidence of his reckless disregard for
the truth or for ascertaining the truth. In this
case, the appellant accepted an extremely large
amount of money for providing information to
POGO that was obtained through his Federal em-
ployment. It is patently unreasonable for the ap-
pellant to have had no inkling that receipt of such
a payment may be unlawful. As noted above, any
reasonable person should know that a Federal
employee cannot accept an extremely large cash
award from an outside entity for performing their
job duties. The appellant could have sought clari-
fication from the [A]gency’s ethics officer but he
failed to do so. For all of these reasons, I find that
the appellant’s failure to ascertain the acceptabil-
ity of this payment to demonstrate a reckless dis-
BERMAN v. INTERIOR 16
regard for ascertaining the truth. Accordingly, I
find that the appellant had an intent to use his of-
fice for private gain.
Initial Decision at 9-10. We identify two errors in the
Board’s analysis.
First, the Board’s finding that Berman “had an intent
to use his office for private gain” appears to give signifi-
cant weight to Berman’s merely committing the acts on
which the charged misconduct is predicated. But a major
purpose of the requiring proof of intent is to distinguish
between wrongful conduct and otherwise innocent con-
duct. See POGO IX, 616 F.3d at 550-51 (discussing cases).
Consistent with that purpose, we have long-held that the
Board must not subsume an intent element into the
distinct inquiry of whether the actus reus was committed,
as the Board apparently did here. See Naekel v. Dep’t of
Transp., 782 F.2d 975, 978 (Fed. Cir. 1986). Moreover,
even if the Board’s analysis were otherwise correct, the
issue of whether Berman violated Section 209(a) was not
before the Board. In the absence of collateral estoppel,
the Board’s logic therefore fails on its own terms.
Second, we note that good faith reliance on the advice
of an attorney or other knowledgeable advisor—although
not dispositive—can be highly probative evidence that a
defendant lacked willful intent. E.g., Cheek v. United
States, 498 U.S. 192, 200-02 (1991); but see Wonsover v.
S.E.C., 205 F.3d 408, 414-16 (D.C. Cir. 2000) (noting that
“[w]illfulness is usually understood to be contextual” and,
under the circumstances, inquiries to an attorney and
other advisors were inadequate). The Board’s precedent
is in accord. See, e.g., Doerr v. Office of Pers. Mgmt., 104
M.S.P.R. 196, 199-200 (2006). Indeed, the Board has held
that “[w]here an employee acts on the advice of personnel
on whom it is reasonable to rely, any violation of law
17 BERMAN v. INTERIOR
which results cannot, absent other factors, be considered
willful.” Mauro v. Dep’t of the Navy, 35 M.S.P.R. 86, 94
(1987). In contrast, a failure to seek such advice may have
limited probative value in the absence of a legal duty to do
so. See Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH
v. Dana Corp., 383 F.3d 1337, 1345-46 (Fed. Cir. 2004) (en
banc).
In this case, the record includes evidence that both
Berman and POGO consulted with outside counsel, that
POGO’s attorney contacted the Department of Justice
prior to POGO’s making the award to Berman, that
Berman spoke to POGO’s attorney regarding his commu-
nications with the Department of Justice, and that Ber-
man believed that the Department of Justice did not
object to his receiving the award. See, e.g., Hr’g Tr.
191:21 - 193:1. Berman explicitly introduced this evi-
dence as indicative of his state of mind. Hr’g Tr. 191:12 -
16. Despite the significant probative value of Berman’s
evidence under Board precedent, the Board failed to
discuss it in the Initial Decision, and, instead, placed
great weight on Berman’s failure to consult an Agency
ethics advisor.
In short, Berman’s challenge is not entirely without
merit. We decline to reach the intent issue, however, as
the record and the Board’s analysis may differ following
the proceedings on remand. 3
III.
The District of Columbia Circuit has cautioned that a
“court asked to accord a judgment preclusive effect may
3As the District of Columbia Circuit suggested in
POGO IX, evidence relevant to determining the scope of
Berman’s duties may also be relevant to the issue of
Berman’s intent. 616 F.3d at 559 n.17.
BERMAN v. INTERIOR 18
be well-advised to stay its own proceedings to await the
ultimate disposition of the judgment on appeal.” In re
Prof’l Air Traffic Controllers Org., 699 F.2d 539, 544 n.18
(D.C. Cir. 1983) (citing Restatement (Second) of Judg-
ments § 15 cmt. b). Precedent does not command such a
stay. Rice v. Dep’t of Treasury, 998 F.2d 997, 999 (Fed.
Cir. 1993). But precedent similarly does not command
the application of collateral estoppel. Dana v. E.S. Origi-
nals, Inc., 342 F.3d 1320, 1325 (Fed. Cir. 2003). Prudence
may suggest that a court stay a proceeding or otherwise
avoid the application of collateral estoppel until the
underlying matter is resolved. See, e.g., Ryan v. Dep’t of
Homeland Sec., 112 M.S.P.R. 43, 45 (2009) (reviewing
grounds for dismissal without prejudice). We therefore
join the District of Columbia Circuit in its cautionary
advice. 4
CONCLUSION
We vacate the Board’s final decision and remand this
case to the Board for further proceedings consistent with
this opinion and the District of Columbia Circuit’s opinion
in POGO IX. On remand, the Board is instructed to
reopen discovery and to afford Berman a new hearing,
including the opportunity for both parties to identify new
witnesses and recall witnesses who previously testified.
Costs to Berman.
4 We note that the record in this case includes tes-
timony that, following the jury verdict, the Department of
Justice cautioned the Agency to “proceed slowly” because
Berman “still may appeal his case.” Hr’g Tr. 90:8 – 91:13.
Moreover, internal Agency communications indicate
awareness that novel and difficult questions of law were
implicated by the district court proceedings. B41. The
Agency nevertheless failed to object when the administra-
tive judge indicated her intent to apply collateral estop-
pel, despite being given the opportunity to do so.