But in the U.S. Circuit Court of Appeals for the District of Columbia faulted Jackson for concluding, without a trial, that the money was compensation for his government work, rather than for what he did as a whistleblower outside the scope of his work, as POGO argued.
So, in 2008, the case went to trial and a jury decided that POGO and Berman had violated the law. By then, Jackson had retired and a new judge, John D. Bates, was overseeing the case. Bates assessed a civil penalty on Berman equal to the money he had received from POGO. But the judge, concluding that POGO had given the check in good faith, penalized the group only $120,000. (Bates presided over the new trial, too, but was out Monday, so Kollar-Kotelly filled in for him.)
In 2010, the appeals court said Bates made a mistake in instructing the jury that it was irrelevant whether POGO and Berman knew the activities Berman was being compensated for were part of his official responsibilities. The appeals court said that it was important whether the defendants knew.
In closing arguments last week, Justice Department lawyer David Finkelstein said the case was about trust, which he claimed POGO and Berman had both violated. He said that POGO had based its 1997 lawsuit on work that Berman did on the royalty issue, and cited memos that Berman had sent to his superiors on the topic. Finkelstein also noted that the letter POGO sent to Berman along with the check mentioned his decade of work on the oil royalty issue.
"This was precisely his job," Finkelstein said. "You can call it whistleblowing. It was his job to do this."
Ross Nabatoff, a lawyer for POGO, said that the work his client was compensating Berman for was whistleblowing work. As to the memos that Berman sent to his superiors, Nabatoff said, "Where's he going to send them — Dairy Queen?! He's going to send them up the chain!"
A separate ruling by Bates still could force Berman, who is representing himself in court, to repay the money. In March, Bates agreed with the Justice Department that Berman had breached his fiduciary duty to the government by working on royalty issues that could help POGO win its lawsuit. Berman appealed, but the appeals court said it was premature.
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