NOTE: This order is nonprecedential
United States Court of AppeaIs
for the Federal Circuit
ROBERT A. BERMAN,
Petitioner,
V.
DEPARTMENT OF THE INTERIOR,
Respondent.
2010-3052
Petition for review of the Merit Systems Protecti0n
Board in case no. DC0752090294-I-1.
ON MOTION
Bef0re LINN, Circuit Judge.
0 R D E R
R0bert A. Berman moves to summarily reverse the
judgment of the Merit Systems Pr0tection Board in Ber-
man v. Dep't of Interior, No. DC0752090294-I-1, and for
this court to instruct the Board to order the Department
of Interior to compensate Berman for all losses and re-
store him to his prior position at the Department. The
Depart1nent 0pposes. Berman replies

BERMAN V. INTERlOR 2
Berman was employed as an economist at the De-
partment. In November 1998, Berman accepted a mone-
tary award from the Project on Government Oversight
(POGO) for his work related to a qui tam action involving
payments for the extraction of oil on federal lands. Subse-
quently, the United States filed a civil suit in the United
States District Court for the District of Columbia assert-
ing that POGO and Berman violated 19 U.S.C. § 209
which prohibits private parties from making, and Gov-
ernment employees from receiving, payments that com-
pensate employees for government service. In February
of 2008, a jury found that POGO and Berman violated §
209. POGO and Berman appealed, seeking review by the
United States Court of Appeals for the District of Colum-
bia Circuit.
Meanwhile, the Department sought to remove Ber-
man for misconduct based on his acceptance of the award.
The administrative judge sustained the Department’s
removal, relying in part on the jury verdict. The Board
denied Berman’s petition for review and Berman sought
review of the Board's decision by this court.
This court stayed the briefing schedule in this case
pending the District of Columbia Circuit’s disposition in
United States v. Project on Gov’t O1)ersight, 616 F.3d 544
(D.C. Cir. 2010). In its decision, the Court of Appeals for
the District of Columbia Circuit vacated and remanded in
part for a new trial, concluding that intent was a required
element of a § 209 violation and that the district court’s
jury instruction failed to properly instruct the jury on the
intent element.
Berman argues that United States u. Project on Gou’t
Oversight controls the disposition of this case The United
States argues that United States u. Project on Gov’t Ouer-
sight does not control disposition of this case.

3 BERMAN v. INTER10R
This court deems it the better course for the parties to
raise these arguments in their briefs.
Accordingly,
I'r ls ORDERED THAT:
(1) Berman’s motion for summary reversal is denied
without prejudice to the parties raising their arguments
in the briefs. The stay of the briefing schedule is lifted
Berman's opening brief is due within 30 days of the date
of filing of this order.
(2) Any other pending motions are denied as mo0t.
FoR THE CoURT
FEB 02 2011 /3/Jan H0rba1y
Date J an Horbaly
Clerk
ccc Robert A. Berman (informal brief form enclosed)
Joshua E. Kurland, Esq.
s20 l
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FEB 02 2011
.|AN |'lDRBAL_\'
GLEHl

