DOBYNS v. USA

Filing 479

REPORTED OPINION (public version of sealed Opinion and Order issued March 2, 2016). Signed by Chief Judge Patricia E. Campbell-Smith. (sc) Copy to parties.

In the United States Court of Federal Claims
No. 08-700C
(E-Filed Under Seal: March 2, 2016)
(Reissued: June 9, 2016)1

JAY ANTHONY DOBYNS,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

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Fraud Upon the Court; Fraud by an
Opposing Party; Relief from
Judgment; RCFC 60; RCFC 53(f);
Remand Pursuant to Fed. R. App. P.
12.1

James B. Reed, Phoenix, AZ, for plaintiff.
Robert E. Kirschman, Jr., Director, with whom was Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant.
OPINION AND ORDER
CAMPBELL-SMITH, Chief Judge
This matter is before the court on remand. Pursuant to Rule 60 of the Rules of the
United States Court of Federal Claims (RCFC), plaintiff filed a motion seeking relief
from judgment (Rule 60 Motion) alleging that defendant, through its counsel, had
committed fraud on the court. By appointment, a special master gathered evidence to
1

This Opinion was originally filed under seal to protect potentially proprietary or
confidential information. The parties were provided an opportunity to request redactions
of any protected information. On March 16, 2016, defendant provided its proposed
redactions, Def. Mot. (sealed), Mar. 16, 2016, ECF No. 465, and plaintiff objected to
defendant’s proposed redactions on this same date, Pl.’s Obj. (sealed), Mar. 16, 2016,
ECF No. 466. On June 9, 2016, the court entered its order granting defendant’s motion in
its entirety. Order, June 9, 2016, ECF No. 478. Redacted text is indicated as follows,
xxx, with the redaction approximately equal in length to the text redacted.

assist the court in determining whether such fraud had occurred. After discovery and
briefing by the parties, the special master issued a final report and recommendation
finding no evidence of fraud. Defendant filed a motion requesting that the court adopt
that report and recommendation, and plaintiff filed an objection.
For the following reasons, the court DENIES plaintiff’s Rule 60 Motion and
adopts the special master’s final report and recommendation. Defendant’s motion is
GRANTED, and plaintiff’s objection is DENIED.
I.

Background

A thorough discussion of the factual and procedural history of this case is set forth
in the opinion issued by the court after the conduct of a three-week trial on liability and
damages, see Dobyns v. United States, 118 Fed. Cl. 289 (2014), ECF No. 287. For ease
of reference, a brief recitation of the facts and a review of the current procedural posture
of the case follows here.
Jay Anthony Dobyns (plaintiff or Agent Dobyns), a former agent of the Bureau of
Alcohol, Tobacco and Firearms (ATF)2, filed a complaint against the United States
(defendant or government) alleging that ATF officials breached the settlement agreement
into which the parties had entered to resolve plaintiff’s employment dispute. Op. 4, Dec.
1, 2014, ECF No. 316. Agent Dobyns also alleged that ATF officials flouted the
settlement agreement and thereby violated the implied covenant of good faith and fair
dealing. Id. The government asserted a counterclaim, arguing that plaintiff breached the
settlement agreement by writing and publishing books in which he shared his experiences
as an agent. Op. 4, ECF No. 316.
Material to plaintiff’s case against defendant was ATF’s withdrawal of Agent
Dobyns’ fictitious identity credentials3 three months prior to an arson at Agent Dobyns’
home in Tucson, Arizona. Dobyns, 118 Fed. Cl. at 298-300. ATF withdrew the
credentials even though it was aware of credible threats to Agent Dobyns, which had
been substantiated by an ATF threat assessment completed less than one year earlier.4 Id.
at 299-300, 309.

2

ATF is an organization within the United States Department of Justice.

3

The use of covert identification documents by the ATF to create fictitious
identities is known as “backstopping.” Id. at 298.
The threat assessment was completed by ATF’s Office of Operations Security
(OPSEC) on June 22, 2007. Dobyns, 118 Fed. Cl. at 297. The risk report recommended
“permanent relocation [of Agent Dobyns and his family] out of the western region with
full backstopping.” Id. at 309 (quoting ATF’s Internal Affairs Division’s Report of
4

2

In response to complaints received from Agent Dobyns, Agent Christopher
Trainor (Agent Trainor) of ATF’s Internal Affairs Division (IAD) completed a formal
investigation of ATF’s response to the fire at Agent Dobyns’ residence. Id. at 307-308.
Agent Trainor concluded, in an IAD Report of Investigation (ROI), that certain ATF
leadership mismanaged the response to the fire, and that certain ATF leadership
identified Agent Dobyns as a suspect during the arson investigation, notwithstanding
credible evidence indicating otherwise. Id.
More than twenty ATF officials and agents testified during the three-week trial.
Id. On August 25, 2014, the court issued a fifty-three page opinion finding that while
ATF did not breach the settlement agreement, Dobyns, 118 Fed. Cl. at 313-16, it did
breach the implied covenant of good faith and fair dealing, id. at 317-21. The court
awarded Agent Dobyns $173,000 for emotional distress and pain and suffering. Id. at
321-27. The court denied the government’s counterclaim because ATF knew about the
publishing contracts prior to executing the settlement agreement. Id. at 327-330.
After the clerk of court entered judgment in favor of plaintiff, J., Aug. 28, 2014,
ECF No. 288, defendant filed a notice of appeal, see Def.’s Notice, Oct. 24, 2014, ECF
No. 297. Shortly thereafter, plaintiff filed a notice of cross-appeal. See Pl.’s Notice, Oct.
27, 2014, ECF No. 299.
On October 29, 2014, the court issued an order voiding judgment, based on
indications that defendant’s counsel had committed fraud on the court. Order, ECF No.
300. Defendant filed a motion to vacate that order, see Def.’s. Mot., Nov. 6, 2014, ECF
No. 304, and the court granted defendant’s motion, see Order, Nov. 12, 2014, ECF No.
308.
On November 14, 2014, the court issued an order requesting clarification from the
parties as to whether they intended to invoke the “indicative ruling” procedures in the
court’s rules, based upon the alleged fraud. Order 1, Nov. 14, 2014, ECF No. 311. In
response to the court’s order, plaintiff moved for an indicative ruling under RCFC 62.1
and for relief from judgment under Rule 60. See Pl.’s Mot., Nov. 19, 2014, ECF No.
313. To support his requests, plaintiff identified ten instances of alleged misconduct by
defendant’s attorneys. Id. at 4-5. On December 1, 2014, the court granted plaintiff’s
motion for an indicative ruling (December 2014 Order). See Order, Dec. 1, 2014, ECF
316. On December 18, 2014, the Federal Circuit remanded the case back to the court for
further proceedings pursuant to Fed. R. App. P. 12.1, but otherwise retained jurisdiction.
Dobyns v. United States, No. 15-5021, ECF No. 5 (Fed. Cir. Dec. 18, 2014)(per curiam).

Investigation on Agent Dobyns’ loss of backstopping completed on May 13, 2013 and the
OPSEC’s threat assessment of Agent Dobyns completed on June 22, 2007).

3

On remand from the Federal Circuit, the then-assigned judge, Senior Judge
Francis Allegra (assigned judge or Judge Allegra), recommended the appointment of a
special master to assist him in making findings. Order, Feb. 9, 2014, ECF No. 330. Both
parties agreed that the appointment of a special master was appropriate. See Def.’s
Resp., Feb. 18, 2015, ECF No. 331; see also Pl.’s Resp., Feb. 18, 2015, ECF No. 332.
On February 23, 2015, the undersigned, in her capacity as chief judge, issued an
order appointing retired magistrate judge John Facciola to serve as special master
(Special Master) in this case. Order, Feb. 23, 2015, ECF No. 334. On that same date, the
assigned judge issued an order setting forth the Special Master’s responsibilities and the
procedures governing his service (February 2015 Order). Order 4-6, Feb. 23, 2015, ECF
No. 335. Among other designated tasks, the order authorized the Special Master to
investigate those matters described in Paragraph 21 of the order. Id. at 4. Paragraph 21
provided that:
The Special Master will make findings assisting the assigned judge in
determining whether defendant’s attorneys, in the conduct of this case,
effectuated a fraud upon the court under RCFC 60(d)(3). As may be
necessary, the Special Master may also consider whether there are other
grounds for relief from a final judgment in this case under RCFC 60,
including the existence of fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing party under
RCFC 60(b)(3).
Id. at 6.
The order also incorporated the duties of the Special Master, as set forth in RCFC
53, to include the authority to regulate all proceedings and to “take all appropriate
measures to perform the assigned duties fairly and efficiently.” Id. at 5 (quoting RCFC
53(c)(1)). Additionally, the order granted the Special Master authority to “preside over
evidentiary proceedings, and make findings of fact.” Id. at 6.
On March 4, 2015, the Special Master ordered plaintiff to file a summary of the
issues to be addressed during the investigatory proceedings. See Order, Mar. 4, 2015,
ECF No. 336. Five days later, plaintiff filed a memorandum identifying ten instances of
potential misconduct that he believed required further investigation. Pl.’s Mem., Mar. 9,
2015, ECF No. 337. Plaintiff described the same instances that he had mentioned earlier
in his Rule 60 Motion. In particular, plaintiff made the following allegations:
1) Charles Higman (RAC Higman), Resident Agent in Charge of an ATF field
office in Tucson, threatened Agent Trainor over an ROI Agent Trainor had
prepared that frankly criticized how RAC Higman handled the arson
investigation at plaintiff’s residence, and in turn, defendant’s counsel
4

threatened to destroy Agent Trainor’s career if he reported the threats to the
court;
2) ATF counsel Valerie Bacon (Ms. Bacon) interfered with the work of the
agency by directing the newly-designated Special Agent in Charge for the ATF
Phoenix Division, Thomas Atteberry (SAC Atteberry), and ATF agent Carlos
Canino not to reopen the arson investigation;
3) United States Department of Justice (DOJ) counsel David Harrington (Mr.
Harrington) made false statements to the court by denying knowledge of Ms.
Bacon’s efforts to thwart the reopening of the arson investigation;
4) ATF counsel Kent Kiffner (Mr. Kiffner) and Rachel Bouman (Ms. Bouman)
improperly withheld telephone surveillance recordings that plaintiff had
requested;
5) George Gillett (ASAC Gillett), then Assistant Special Agent in Charge of an
ATF Phoenix field office, and RAC Higman gave perjured testimony at trial,
and defendant’s counsel made no correction for the court;
6) Mr. Kiffner and Ms. Bouman allowed perjured deposition testimony by ASAC
Gillett, RAC Higman and William Newell (SAC Newell), who was then the
Special Agent in Charge of the ATF Phoenix Field Division, about what
prompted the agency’s telephone surveillance of—and triggered the agency’s
interest in—plaintiff as a suspect in the arson investigation;
7) Mr. Harrington withheld from plaintiff’s counsel and the court certain ROIs
and recommendations of the professional review board (PRB) that he falsely
misrepresented were irrelevant;
8) DOJ counsel instructed the deciding official at the PRB bureau, namely ATF
Assistant Director Thomas Brandon (Assistant Director Brandon), not to
accept the PRB’s recommendations pertaining to the ROIs;
9) Assistant Director Brandon issued the PRB’s letters of clearance for three ATF
employees—namely, the chief of ATF’s Special Operation Division, Marino
Vidoli, the then-chief of the National Integrated Ballistic Information Network,
Steven Pugmire, and SAC Newell—all of whom, the court found, had engaged
in improper conduct; and
10) Defendant’s counsel caused the cell phone of ATF Deputy Director Ronnie
Carter (Deputy Director Carter) to ring during critical questioning at trial, as a
prompt for him to look to counsel for cues on how to answer. Pl.’s Mem. 7-9,
ECF No. 337; see also Pl.’s Mot. 4-5, ECF No. 313.

5

On March 13, 2015, defendant responded to plaintiff’s allegations, ECF No. 342.
Defendant argued that plaintiff had not met the legal standards for obtaining Rule 60
relief. Defendant explained that the alleged misconduct had not interfered with plaintiff’s
ability to fully and fairly present his case, had not influenced the court’s judgment, and
had not materially affected the outcome of the litigation. Def.’s Resp. 12-13, Mar. 13,
2015, ECF No. 342. Defendant added that all but one of plaintiff’s allegations had been
raised and had been addressed either at trial or prior to judgment. Id. at 13.
After reviewing the parties’ filings and the record as a whole, the Special Master
issued an order setting forth the uncontested facts and limiting the scope of discovery
(April 2015 Order). Order, Apr. 7, 2015, ECF No. 348. The Special Master identified, as
appropriate for discovery, only those allegations that potentially influenced the court’s
judgment—to include, in the Special Master’s view, “[RAC] Higman threatening Agent
Trainor and DOJ officials allegedly threatening [Agent] Trainor were he to report the
Higman threat to the Court” (collectively the “Trainor threats”). Id. at 12 (citing Pl.’s
Mem. 10-14, ECF No. 337; Def.’s Resp. 15-17, ECF No. 331).
Plaintiff moved for reconsideration of the Special Master’s April 2015 Order on
the grounds: (1) that the Special Master erred in concluding that different testimony from
Deputy Director Carter would have had no impact on the court’s judgment, Pl.’s Mot. 413, Apr. 13, 2015, ECF No. 352; and (2) that further consideration was warranted into the
efforts of DOJ to discourage Assistant Director Brandon from signing the PRB’s
recommendations. Id. at 13-16. Plaintiff argued that he might be entitled to sanctions and
attorney’s fees, were the Special Master to have made such findings on reconsideration.
Id.
The Special Master denied the reconsideration motion because plaintiff failed to
establish either: (1) a manifest error of law or a mistake of fact; (2) an intervening change
in the law; (3) the availability of previously unavailable evidence; or (4) a resulting
manifest injustice (May 2015 Order). Order, May 4, 2015, ECF No. 371.
After reviewing the evidence produced by discovery, the Special Master issued an
order on June 26, 2015, indicating that no depositions were needed. Order, June 26,
2015, ECF No. 411. The Special Master added that he had found no evidence of fraud on
the court and no evidence of fraud by a party that had influenced the court’s judgment.
Id. at 10. Before issuing the final report and recommendation, the Special Master
afforded plaintiff a week to show why the proceedings should not be concluded
immediately. Id. Plaintiff responded but failed to establish any basis for further
proceedings. See Pl.’s Resp., July 9, 2015, ECF No. 420.
On July 23, 2015, the Special Master issued his final report and recommendation,
denying plaintiff’s Rule 60 Motion (June 2015 Order). See R. & R. 1, 3, July 23, 2015,
ECF No. 430.
6

On August 27, 2015, defendant moved for the adoption of the Special Master’s
report and recommendation. See Def.’s Mot., Aug. 27, 2015, ECF No. 445. Plaintiff
filed an objection. See Pl.’s Obj., Aug. 27, 2015, ECF No. 447. Nearly two weeks later,
defendant responded to plaintiff’s objection, see Def.’s Reply, Sept. 18, 2015, ECF No.
452, and plaintiff responded to defendant’s motion. See Pl.’s Resp., Sept. 18, 2015, ECF
No. 453.
The parties’ motions are now ripe for ruling.
II.

Legal Standards
A. Standard of Review of the Special Master’s Report and Recommendation

All objections to the findings of fact made or recommended by a special master
are reviewed de novo. RCFC 53(f)(3). All objections to the conclusions of law made or
recommended by a special master are reviewed de novo. RCFC 53(f)(4). A special
master’s ruling on a procedural matter may be set aside only for an abuse of discretion
unless the appointing order establishes a different standard of review. RCFC 53(f)(5).
B. Standard of Relief Under Rules 60(b)(3) and 60(d)(3)
Rule 60(b)(3) permits the court, “on motion and just terms,” to relieve a party
from a final judgment for “fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party.” Id. Rule 60(d)(3) also permits
the court to “set aside a judgment for fraud on the court.” Id. “Principles governing the
application of Rule 60 include ‘[t]he principle that finality of judgments is of great
importance and that final judgments should not be disturbed lightly.’” Order 8, Apr. 7,
2015, ECF No. 348 (quoting 12 James Wm. Moore, et al., Moore’s Federal Practice ¶
60.22[2] (3d. ed. 2014)).
1.

Rule 60(b)(3)

To obtain relief from a judgment under Rule 60(b)(3), the movant first must
“demonstrate misconduct—such as fraud or misrepresentation—by clear and convincing
evidence. Second, the movant must show that the misconduct foreclosed full and fair
presentation of his case.” Hutchins v. Zoll Med. Corp., 492 F.3d 1377, 1385-86 (Fed.
Cir. 2007) (quoting Karak v. Bursaw Oil Corp., 288 F.3d 15, 21 (Fed. Cir. 2002) (internal
quotations and alterations omitted)). See also Roger Edwards, LLC v. Fiddes & Sons
Ltd., 427 F.3d 129, 135-136 (1st Cir. 2005); Madison Servs. v. United States, 94 Fed. Cl.
501, 507 (2010); CEATS, Inc. v. Continental Airlines, Inc., 755 F.3d 1356, 1360-61
(Fed. Cir. 2014) (quoting Hesling v. CSX Transp., Inc. 396 F.3d 632, 641 (5th Cir.
2005)(citing Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, 62 F.3d 767, 772 (5th
Cir. 1995)).

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2.

Rule 60(d)(3)

The requirements for obtaining relief from judgment under Rule 60(d)(3) are more
stringent and narrower in scope than those under Rule 60(b)(3).
It is well-settled that ‘fraud upon the court’ should [ ] embrace only that
species of fraud which does[,] or attempts to, subvert the integrity of the court
itself, or is a fraud perpetrated by officers of the court so that the judicial
machinery cannot perform in the usual manner its impartial task of adjudging
cases that are presented for adjudication, and relief should be denied in the
absence of such conduct.
Broyhill Furniture Indus., Inc. v. Craftmaster Furniture Corp., 12 F.3d 1080, 1085-86
(Fed. Cir. 1993) (citing James W. Moore & Jo Desha Lucas, Moore’s Federal Practice ¶
60.33 at 60-360 (2d. ed. 1993) (citations omitted)).
Fraud upon the court is “confined to the most egregious cases, such as bribery of a
judge or juror, or improper influence exerted on the court by an attorney, in which the
integrity of the court and its ability to function impartially is directly impinged.” Id.
(quoting Great Coastal Express, Inc. v. Int’l Brotherhood of Teamsters, 675 F.2d 1349,
1356 (4th Cir. 1982) (citations omitted). Fraud upon the court “is directed to the judicial
machinery itself and is not fraud between the parties or fraudulent documents, false
statements or perjury … [but] where the impartial functions of the court have been
directly corrupted.” Amstar Corp. v. Envirotech Corp., 823 F.2d 1538, 1550 (quoting
Bulloch v. United States, 721 F.2d 713, 718 (10th Cir. 1983) rev’d on other grounds and
remanded, 763 F.2d 1115 (10th Cir. 1985) cert. denied, 474 U.S. 1086 (1986)). And “the
fraud, misrepresentation or conduct must have actually deceived the court. If a court’s
judgment was not influenced by the conduct at issue, the judgment should not be set
aside.” In re Old Carco LLC, 423 B.R. 40, 52 (Bankr. S.D.N.Y. 2010) (citing United
States v. Smiley, 553 F.3d 1137, 1145 (8th Cir. 2009)) aff’d, No. 10 CIV. 2493 (AKH),
2010 WL 3566908 (S.D.N.Y. Sept. 14, 2010) aff’d sub nom. Mauro Motors Inc. v. Old
Carco LLC, 420 F. App’x 89 (2d Cir. 2011)). Fraud upon the court is established by
clear and convincing evidence. Council v. Am. Fed’n of Gov’t Emps. (AFGE) Union,
559 F. App’x. 870, 872 (11th Cir. 2014) (citing Cox v. Nuclear Pharmacy, Inc. v. CTI,
Inc., 478 F.3d 1303, 1314 (11th Cir. 2007)).
III.

Discussion

Before the court are two related issues. The first is whether the Special Master
erred in finding no evidence of either fraud on the court or fraud by a party. The second,
which is contingent upon an affirmative finding of fraud, is whether plaintiff is entitled to
relief from judgment under Rule 60.

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A. The Special Master Applied the Correct Legal Standards Under Rules 60(b)(3)
and 60(d)(3) in Making His Determination
The legal standards applied by the Special Master were established by the Federal
Circuit and thus, are binding on the court. See Broyhill Furniture Indus., 12 F.3d at
1085-86; see also Hutchins, 492 F.3d at 1386.
1. A Movant Must Show Why the Fraud Mattered to Obtain Rule 60
Relief
To obtain relief under Rule 60, a movant must demonstrate, with specificity, how
the alleged misconduct influenced the court’s judgment or materially affected the
outcome of the litigation. In re Old Carco LLC, 423 B.R. at 52. “If a court’s judgment
was not influenced by the conduct at issue, the judgment should not be set aside.” Id.
(citing Smiley, 553 F.3d at 1145). Here, plaintiff has failed to show how the alleged
fraud improperly influenced the court’s judgment. Plaintiff instead attempts to convince
the court that it is not necessary to make this showing by citing to inapposite cases. The
court briefly addresses them, in turn.
a.

Demjanjuk

Plaintiff argues that the Special Master’s report and recommendation contains
factual and legal error because the Special Master improperly applied a more limited
definition of fraud than the “controlling” standard “tailored to deal with attorney
misconduct” that Judge Allegra applied in the December 2014 Order. Pl.’s Obj. 3-6, ECF
No. 447 (citing Order, ECF No. 316). Relying on the case quoted in footnote 4 of the
December 2014 Order, namely Demjanjuk v. Petrovsky, 10 F.3d 338, 348 (6th Cir.
1993), cert. denied sub nom. Rison v. Demjanjuk, 513 U.S. 914 (1994), plaintiff asserts
that the court did not intend for him to show an “alteration of the trial outcome” to obtain
relief under Rule 60. Id. at 5. Examining that case and the quoted language pertaining to
fraud on the court, the court finds that plaintiff’s reasoning misses the mark.
In Demjanjuk, the Sixth Circuit discussed how the alleged fraud improperly
influenced the court’s judgment. The petitioner in that case sought a writ of habeas
corpus after extradition and denaturalization proceedings resulted in his transfer from the
United States to Israel for trial on the charge of mass murder. Demjanjuk, 10 F.3d at 339.
The district court denied petitioner’s request, and the Sixth Circuit affirmed that ruling.
Id. Subsequently, certain exculpatory information was drawn to the court’s attention that
led the Sixth Circuit to reopen the case to consider whether the extradition proceedings
had been tainted by attorney misconduct. Id. On review, the Sixth Circuit found that the
government attorneys had committed fraud on the court by withholding material
information. Id. at 356. The appellate court vacated the prior judgments. Id.

9

Absent a showing of how defendant’s conduct improperly influenced the court’s
judgment here, however, this case does not assist plaintiff.
b.

In re Ocon

Plaintiff argues that by violating the “canons of ethics” and the expectations of a
court officer, defendant—through its counsel—has committed a fraud on the court. Pl.’s
Obj. 47, ECF No. 447. But, the case that plaintiff cites for this proposition, In re Enrique
Antonio Ocon, No. 06-14878-BKC-AJC, 2007 WL 781223 (Bankr. S.D. Fla., Mar. 9,
2007), does not involve Rule 60 proceedings.
In re Enrique Antonio Ocon is an unpublished opinion granting defendant’s
motion for sanctions against plaintiff’s counsel in a bankruptcy case. In re Enrique
Antonio Ocon, 2007 WL 781223, at *1-2. The court awarded sanctions when the
representations of plaintiff’s counsel at a pre-trial hearing were proven false by clear and
convincing evidence. Id. at *2 n.2. In defending against the motion for sanctions,
plaintiff’s counsel suggested that an attorney can lie to the court with impunity so long as
the lie is not believed. Id. The court distinguished the motion for sanctions from a Rule
60 motion, which requires a determination as to “whether the finality of a judgment
should be disturbed.” Id. (citing Comput. Leasco, Inc. v. NTP, Inc., 194 Fed. Appx. 328
(6th Cir. 2006); Great Coastal Express v. Int’l Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of Am., 86 F.R.D. 131 (E.D.Va. 1980)). The court then
analyzed the term “fraud on the court” to mean a departure from integrity and honest
dealing with the court. Id. (citing Kupferman v. Consolidated Res. & Mfg. Corp., 459
F.2d 1072, 1078 (2d Cir. 1972)). The court explained that such fraud “[either] does or
attempts to, subvert the integrity of the proceedings itself. . .’” Id. (citing 7 Moore’s
Federal Practice, ¶ 60.33 at 515 (1971 ed.). Finding that plaintiff’s counsel failed to
comport with the standards of integrity required by the judicial system when she did not
acknowledge the inaccuracies in her representations to the court and opposing counsel,
the court awarded sanctions. Id. at *3-4.
Plaintiff’s reliance on this case to support its request for relief from judgment,
however, is misplaced. The deciding court specifically stated—and this court agrees—
that a request for sanctions prior to entry of judgment is distinguishable from a request
for relief under Rule 60, as the finality of a judgment is not to be disturbed readily.
c.

Zimmerman and Cerruti

Plaintiff asserts that a “mere attempt” to engage in attorney misconduct is a
sufficient ground for Rule 60 relief. Pl.’s Obj. 48-50, ECF No. 447. As support for this
assertion, plaintiff cites the cases Zimmerman v. Poly Prep Country Day School, No. 09
CV 4586(FB), 2012 WL 2049493 (E.D.N.Y. June 6, 2012) and Cerruti 1881 S.A. v.
Cerruti, Inc., 169 F.R.D. 573, 583-84 (S.D.N.Y. 1996). Id. at 49-50.

10

Zimmerman is an unpublished ruling on two motions filed by plaintiffs during
pretrial proceedings in a case involving allegations of sexual assault. Zimmerman, 2012
WL 2049493 at *1. In their first motion, plaintiffs sought certain discovery. Id. In their
second motion, plaintiffs sought sanctions against defendant for perpetrating a fraud on
the court. Id. Focused primarily on plaintiffs’ first motion, the court only briefly
addressed the second motion, stating that a finding of fraud on the court is appropriate
when “it is established by clear and convincing evidence that a party has [engaged in]
some unconscionable scheme calculated to interfere with the judicial system’s ability []
to adjudicate a matter by . . . unfairly hampering the presentation of the opposing parties’
claim or defense.” Id. at *23 (quoting Passlogix, Inc. v. 2FA Tech., LLC, 708 F.Supp.2d
378, 393 (S.D.N.Y. 2010)(internal quotation omitted)). Once the court articulated the
proper legal standard, it declined to make a ruling until it had obtained more information
through an evidentiary hearing. Id. at *35.
In Cerruti, the plaintiff clothing distributor moved for sanctions against its
competitors based on the defendant’s improper conduct during pretrial proceedings.
Cerruti 1881 S.A., 169 F.R.D. at 574. Plaintiff also sought a declaration terminating the
agreement between the parties and finding three of defendants’ trademarks to have been
abandoned, which—by statute—effected cancelation of the trademarks. Id. The court
determined that defendant had given false testimony and used fabricated documents in an
effort to show the validity of the parties’ agreement and to refute the abandonment claim.
Id.
The Cerruti court pointed to its inherent power to sanction a party for bad faith, id.
at 582-83 (citing Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991)), and determined
that such sanctions could include the entry of judgment against the offending party and an
award of attorney’s fees and costs. Id. Noting the “strong preference in the law for
resolving disputes on their merits and not by default, and that judgment against an
offending party is appropriate only in extreme circumstances,” the court concluded that
the repeated abuses in the case before it were extreme. Id. at 583 (citing Marfia v. T.C.
Ziraat Bankasi, New York Branch, 100 F.3d 243, 248-49 (2nd Cir. 1996)). Because
“defendants’ misconduct . . . [went] to the heart of the case by making it apparent that
defendants c[ould] rely only on fraudulent [] records, and the unsubstantiated claims of a
proven liar, to establish that they did not abandon the [trademarks] in question,” the court
sanctioned defendants by entering judgment in favor of plaintiffs and awarding attorney’s
fees and costs to plaintiffs. Id.
Contrary to plaintiff’s assertion, neither of the two cases, Zimmerman and Cerruti,
lend support to plaintiff’s position. The cases do not address the circumstances that merit
disturbing a final judgment—as would be required to prevail on a Rule 60 motion—and
thus, are of limited assistance to plaintiff.

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d.

Rozier

Finally, plaintiff looks to Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir.
1978), for the proper legal standard for fraud on the court. Pl.’s Obj. 48-49, ECF No.
447. Plaintiff proposes to insert the word “only” into the quoted language from the case:
“To establish fraud on the court, ‘it is necessary [only] to show an unconscionable plan or
scheme which is designed to improperly influence the court in its decision.’” Id. (quoting
Rozier, 573 F.2d at 1338) (citations omitted). Plaintiff’s proposed edit materially and
improperly alters the articulated legal standard.
Plaintiff also fails to acknowledge that the appellate court made clear in Rozier
that Rule 60 relief requires that the “conduct complained of must be such as prevented
the losing party from fully and fairly presenting his case or defense.” Rozier, 573 F.2d at
1339 (citations omitted).
Plaintiff in this case makes no such showing, and his efforts to modify the legal
standards for establishing fraud are unavailing.
2. Misrepresentation and Misconduct Under Rule 60(b)(3) Require a
Movant to Show Why the Fraud Mattered
Plaintiff argues that the Special Master’s report and recommendation contains
factual and legal error because the Special Master disregarded the misrepresentation and
misconduct aspects of Rule 60(b)(3), neither of which, plaintiff asserts, “requires
prejudice to the proceedings to warrant . . . relief [from judgment].” Pl.’s Resp. 9, ECF
No. 453. Plaintiff insists that by disregarding these two components of Rule 60, the
Special Master improperly prevented discovery concerning defendant’s misbehavior.
Pl.’s Obj. 7, ECF No. 447. It is plaintiff, however, not the Special Master who has
misapprehended what showing is required under Rule 60. Having determined that
defendant’s counsel’s actions did not interfere with plaintiff’s ability to prove his case
and had no impact on the court’s judgment, the Special Master found no need for further
discovery. Order 8, ECF No. 348. The court finds no error in the Special Master’s
determination.
B. The Special Master Had Authority to Direct Discovery in the Rule 60
Proceedings
1.

Depositions and an Evidentiary Hearing

Because the December 2014 and February 2015 Orders permitted the Special
Master to conduct discovery prior to concluding the Rule 60 proceedings, plaintiff argues
that the Special Master should have allowed depositions, or in the alternative, held an
evidentiary hearing. Pl.’s Obj., in passim, ECF No. 447. The Special Master’s decision

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not to allow depositions or to hold an evidentiary hearing, see Op., ECF No. 411; R. & R.
2 & n.2, ECF No. 430, was a procedural one and thus, is reviewed by the court under an
abuse of discretion standard. RCFC 53(f)(5).
As defendant correctly points out, there is no automatic right to post-judgment
discovery under Rule 60. Def.’s Mot. 41, ECF No. 445 (citing H.K. Porter Co. v.
Goodyear Tire & Rubber Co., 536 F.2d 1115, 1118 (6th Cir. 1976); Madison Servs., Inc.
v. U.S., 94 Fed. Cl. 501, 511 (2010)). A determination as to whether discovery is
necessary is left to the trier of fact’s sound discretion. H.K. Porter Co., 536 F.2d at 1119.
Informing this determination is whether the alleged misconduct, if proven, could
establish fraud under Rule 60. Roger Edwards, LLC, 427 F.3d at 136-37. To establish
such fraud, a party must show that the alleged misconduct influenced the court’s
judgment. In re Old Carco LLC, 423 B.R. at 52. If a party cannot make that showing,
the issuance of an order to permit discovery would be futile.
Here, the court issued an indicative ruling on December 1, 2014. That ruling did
not address the merits of plaintiff’s allegations, nor did it entitle plaintiff to either
depositions or an evidentiary hearing. Rather, the court stated that it would consider
plaintiff’s Rule 60 Motion if the Federal Circuit so directed on remand. Order 6, ECF
No. 316. The court’s subsequent order dated February 23, 2015 authorized the Special
Master to conduct proceedings on plaintiff’s Rule 60 Motion and to exercise his
discretion in determining what discovery was needed to resolve it. See Order, ECF No.
335.
On April 7, 2015, the Special Master issued a discovery order limiting the matters
appropriate for discovery to the Trainor threats because those were the only allegations
that might have influenced the court’s judgment. Order 12, ECF No. 348 (citing Pl.’s
Mem. 10-14, ECF No. 337; Def.’s Resp. 15-17, ECF No. 342). After the issuance of that
order, the Special Master denied defendant’s claimed privilege as to all but ninety
documents. Order 1, ECF No. 411. Noting that “plaintiff ha[d] secured every [existing,]
contemporaneous document . . . [pertaining] to [the Trainor threats] and all but a few of
the documents created during the investigations that occurred a year later,” id., the
Special Master found that the extensive document production precluded the need for any
additional discovery (including depositions) to resolve plaintiff’s Rule 60 Motion.
Plaintiff argues that depositions should have been permitted because the Special
Master contemplated them in his April 2015 Order. Pl.’s Obj. 10 n.6, ECF No. 447.
Plaintiff adds that he was entitled to the deposition of five individuals based on the
agreement between the parties contained in their joint preliminary status report filed on
April 10, 2015. Id.
But, in conformance with the court’s February 2015 Order, the Special Master
exercised his authority to regulate the proceedings and performed his duties fairly and
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efficiently. After thoughtfully considering the evidence produced during discovery, the
Special Master determined that neither depositions nor an evidentiary hearing were
necessary to resolve the Rule 60 Motion. See Op., ECF No. 411; R. & R. 2 & n.2, ECF
No. 430. Plaintiff’s assertions to the contrary are unavailing because the determination
regarding the scope of discovery required to resolve a Rule 60 motion lies within the
discretion of the Special Master. It does not rest with the parties. H.K. Porter Co., 536 F.
2d at 1118. Moreover, although plaintiff argues that he was entitled to additional
discovery, he does not indicate how it would have influenced the court’s judgment. The
court finds no abuse of discretion in the Special Master’s decision regarding further
discovery.
2.

The Summary Judgment Standard

Likening himself to one responding to a summary judgment motion, plaintiff asks
the court to apply Rule 56 standards pertaining to discovery. Pl.’s Obj. 21-24, 38-39,
ECF No. 447. Summary judgment standards, however, do not apply to Rule 60
proceedings.
As defendant correctly observes, key differences exist between the standards for
discovery under Rule 56 and those in Rule 60 proceedings. Def.’s Reply 14, ECF No.
452. One such difference is the absence of an automatic right to discovery under Rule
60. Roger Edwards, LLC, 427 F.3d at 137. In contradistinction to Rule 56 proceedings,
the determination as to whether discovery is needed in a Rule 60 proceeding rests with
the court and is discretionary. H.K. Porter Co., 536 F.2d at 1118. Thus, the court may
resolve a Rule 60 motion without additional discovery or an evidentiary hearing.
Also, unlike motions brought under Rule 56, the court does not grant favorable
inferences to the party seeking relief from judgment by a Rule 60 motion. Def.’s Reply
14, ECF No. 452. Instead, the court weighs the evidence.
Notwithstanding plaintiff’s assertions, Rule 56 summary judgment standards do
not apply in this case, and the Special Master properly did not apply them.
3.

Sanctions

Plaintiff argues that even if the Special Master failed to find that defendant’s
counsel perpetrated a fraud on the court, the Special Master should have imposed
sanctions. Pl.’s Obj. 11, 13, 41-45, ECF No. 447. Plaintiff asserts that in circumstances
involving conduct by a party that does not amount to fraud, the court may exercise its
discretion to impose sanctions on a party that has exhibited bad faith that cannot be
addressed otherwise by either statute or rule. Id. at 41 (citing Takeda Chemical
Industries, Ltd., et al., v. Mylan Laboratories, Inc., et al., 549 F.3d 1381, 1390-91 (Fed.

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Cir. 2008) (citing Chambers v. NASCO, 501 U.S. 32, 46 (1991))). Plaintiff relies on two
cases to support his position.
Plaintiff points first to Takeda Chemical, a patent infringement action. 549 F.3d at
1384. As plaintiffs, the patentee and its affiliate, prevailed against a generic drug
company and moved for attorney’s fees under 35 U.S.C. § 271(e)(4), on the theory that
the case was an exceptional one. Id. at 1384. The district court agreed and awarded to
plaintiffs the statutorily allowed attorney’s fees. Id. at 1384-1385. Further to its inherent
power to impose sanctions, the district court also awarded the experts’ fees. Id.
The Federal Circuit affirmed the award of attorney’s fees on appeal, noting that
the “trial judge, ‘. . . is in the best position to know how severely [a party’s] misconduct
has affected the litigation.’” Id. at 1390-91 (citing Beckham Instruments, Inc. v. LKB
Produkter AB, 892 F.2d 1547, 1553). As to the award of expert fees, the Federal Circuit
also affirmed, stating that “a district court may invoke its inherent power to impose
sanctions in the form of reasonable expert fees in excess of what is provided for by
statute” in cases involving “a finding of fraud or abuse of the judicial process” or in cases
involving bad faith that could not be reached otherwise by rule or statute. Id. (citing
Chambers, 501 U.S. at 46). Plaintiff argues the Special Master should have exercised his
inherent power to impose sanctions here.
Plaintiff also points to the court’s conduct in the case of In re E.I. du Pont de
Nemours & Co., 918 F. Supp. 1524 (M.D. Ga. 1995) rev’d on other grounds and
remanded, 99 F.3d 363 (11th Cir. 1996) cert. denied, 522 U.S. 906 (1997). Id. at 43. In
that product liability action brought by various nurserymen against the manufacturer of
an allegedly defective fungicide, plaintiffs accused defendant of misrepresentation and
the concealment of critical evidence. In re E.I. du Pont, 918 F. Supp. at 1556. The court
found:
No party, be it an individual or a corporation, can unilaterally decide the
evidence.
Put in layperson’s terms, DuPont cheated consciously,
deliberately and with purpose. DuPont has committed a fraud on this Court,
and this Court concludes that DuPont should be, indeed must be, severely
sanctioned if the integrity of the Court system is to be preserved.
Id.
Seeking a similar outcome here, plaintiff contends that defendant’s counsel’s
failure to apprise the court of the Trainor threats compromised the court’s ability to police
and protect the integrity of its proceedings and thus, merits the imposition of sanctions.
Pl.’s Obj. 43-44, ECF No. 447.

15

In contradistinction to the cases plaintiff cited, the Special Master had a limited
charge. As noted in the Special Master’s report and recommendation, plaintiff moved
only to set aside the judgment. R. & R. 2, ECF No. 430. It follows then that the need to
resolve that motion defined the scope of the Special Master’s work.
A Rule 60 motion is available only to set aside a judgment; it may not be used to
grant additional relief. James Wm. Moore, et. al., Moore’s Federal Practice ¶ 60.25 (3d.
ed. 1999). Having discharged his assigned responsibilities, and without “a roving
commission to explore the behavior of the government lawyers or to assess [the] ethical
propriety [of defendant’s counsel’s conduct],” id., the Special Master was without
authority to make an award of sanctions to plaintiff. To the extent plaintiff suggests
otherwise, plaintiff’s position is unavailing.
Moreover, if, during pre-trial and trial proceedings, plaintiff believed that Judge
Allegra was not fully apprised of defendant’s conduct, or had reason to believe that Judge
Allegra did not give such conduct the adequate consideration that it deserved, plaintiff
was able to raise his concerns and seek sanctions prior to the entry of the court’s
judgment. It is well settled that a party is not entitled to post-judgment discovery where
such information was available during pre-trial proceedings or at the time of the original
trial. See H.K. Porter Co., 536 F.2d at 1118; Bulloch v. United States, 763 F.2d at 112122 (10th Cir. 1985) cert. denied, 474 U.S. 1086 (1986).
C. Plaintiff is Not Entitled to Relief under Rule 60
Although plaintiff claims otherwise, the Special Master did apply the correct legal
standards in determining that there was no evidence of either fraud on the court or fraud
by a party.
1.

The Alleged Trainor Threats

The Special Master reviewed the evidence, produced by discovery, that pertained
to the Trainor threats. R. & R. 9-10, ECF No. 430. The evidence included a series of
email exchanges between DOJ and ATF attorneys concerning the threat allegedly made
by RAC Higman to Agent Trainor. Id. The exchanges provided “a comprehensive,
contemporaneous record of the decisions made by [defendant’s counsel which]
culminat[ed] in the decision not to advise the court of the alleged Higman threat.” Order
1, ECF No. 411. The Special Master considered that evidence as well as the sequence of
relevant events; in particular, he noted that RAC Higman issued the threat after Agent
Trainor had appeared before the court as a trial witness and after the court had closed the
trial record. The Special Master observed that “a decision [was] made, based on legal
principles and strategic judgments, that there was no reason to bring the alleged threats to
the attention of the court.” Id. at 8. The Special Master found that when considered in

16

context, defendant’s failure to bring the Trainor threats to the court’s attention did not
constitute either a fraud on the court or fraud by a party. R. & R. 1-2, ECF No. 430.
In his filed objection, plaintiff fails to show how the Higman threat had any effect
on Agent Trainor’s testimony. Plaintiff also fails to show how the threat by defendant’s
counsel had any effect on Agent Trainor’s testimony. Id. at 9 n.3. Agent Trainor
testified about his investigation of ATF’s withdrawal of the documents that protected
plaintiff’s identity. Where his testimony diverged from that of his ATF colleagues who
also testified at trial, the court credited Agent Trainor’s testimony. Id. at 10 (citing
Dobyns, 118 Fed. Cl. at 311-12). The court finds no error in the Special Master’s finding
that no fraud occurred, and plaintiff has not established otherwise.
2.

Plaintiff’s Other Allegations

In his April 2015 Order, the Special Master found that all of plaintiff’s enumerated
allegations—except as pertained to the Trainor threats—had been addressed before the
court entered judgment. Order 11, ECF No. 348. The Special Master determined that
plaintiff failed to show how, even if proven, the identified instances of misconduct
adversely affected his ability to fully and fairly present his case. The Special Master also
determined that plaintiff failed to show how the alleged misdeeds would have swayed the
court’s judgment, or how they would have altered the outcome of the case. Order 11,
ECF No. 348.
For the sake of completeness, the court addresses each of plaintiff’s remaining
allegations in turn.
a.

Communications by Ms. Bacon

Plaintiff complains that Ms. Bacon attempted to dissuade SAC Atteberry from
reopening the arson investigation to avoid compromising defendant’s case. Order 11,
ECF No. 348. But, SAC Atteberry testified that Ms. Bacon’s comments to him about the
possible adverse impact of reopening that investigation did not prevent him from doing
so. Id. Instead, he pushed forward, disregarded Ms. Bacon’s comments, and did what he
believed he needed to do. Id. SAC Atteberry then testified favorably for plaintiff.
Plaintiff’s claims that Ms. Bacon’s comments to SAC Atteberry compromised the
presentation of his case and negatively affected the court’s judgment simply are not
supported by the facts. The court finds no abuse of discretion in the Special Master’s
determination that no further discovery on this issue was necessary.

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b.

Mr. Harrington and His Alleged Misrepresentations to the
Court

Plaintiff claims that in Mr. Harrington’s capacity as defendant’s counsel, he
committed fraud upon the court by denying knowledge of Ms. Bacon’s efforts to
discourage SAC Atteberry from reopening the arson investigation. Pl.’s Obj. 10, 29-33,
ECF No. 447. The Special Master found that even if true, Mr. Harrington’s alleged
misrepresentation had no material effect on the outcome of the litigation because Mr.
Harrington corrected his statements and briefed the matter—at the court’s request—
before the court entered judgment. Order 8, ECF No. 348; see also Def.’s Notice 2-3,
July 1, 2013, ECF No. 199 (citing Exs. A-C). The court discerns no abuse of discretion
in the Special Master’s conclusion that no further discovery on this issue was necessary.
c.

The Audio Recordings

Plaintiff alleges that defendant’s attorneys improperly “withheld telephone
surveillance recordings despite plaintiff’s [repeated] requests for production.” Pl.’s Resp.
13, ECF No. 453. This discovery issue, however, was resolved prior to trial, Order 10,
ECF No. 348, and plaintiff introduced the recordings as evidence at trial for the court’s
consideration. Id.; see also Dobyns, 118 Fed. Cl. at 308. On review, the Special Master
found that plaintiff failed to show how defendant’s tardiness—whether intentional or
not—in producing the recordings either adversely affected the presentation of plaintiff’s
claim or impaired the court’s ability to adjudicate the case. The court finds no abuse of
discretion in the Special Master’s determination that no further discovery on this issue
was necessary.
d.

Perjury

Plaintiff asserts that ASAC Gillett and RAC Higman testified perjuriously at trial
and that defendant’s counsel did not discourage—but likely encouraged—it. Pl.’s Resp.
13, ECF No. 453. Plaintiff adds that defendant’s counsel also failed to cure the
perjurious deposition testimony given by ASAC Gillett about ATF’s surveillance of, and
suspicions about, plaintiff’s involvement in the arson under investigation. Id.
Without more, however, allegations of perjury do not support a claim for relief
under Rule 60. The Federal Circuit has stated that “[f]raud on the court is fraud which is
directed to the judicial machinery itself[; it] is not fraud between the parties or fraudulent
documents, false statements or perjury . . . [but] where the impartial functions of the court
have been directly corrupted.” Broyhill Furniture Indus., Inc., 12 F.3d at 1085-86
(internal quotation citations omitted). “[P]erjury and fabricated evidence do not
constitute fraud on the court because they could have been exposed at trial and are not
considered to be ‘the more egregious forms of subversion of the legal process.’” Council,
559 F. App’x at 873 (quoting Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1551-52

18

(11th Cir. 1985)). Courts have counseled that perjury is better addressed through
safeguards such as discovery, cross-examination, presentation of contrary evidence, and
argument. Id.; see also Lockwood v. Bowles, 46 F.R.D. 625, 633 (D.D.C. 1969); Great
Coastal Express, Inc., 675 F.2d at 1357.
Plaintiff in this case was afforded the opportunity to cross-examine ASAC Gillett
and RAC Higman during depositions and at trial. After hearing their testimony and
evaluating the credibility of these witnesses, the court found significant portions of their
testimony to be “unworthy of belief” and thus, gave their testimony diminished weight.
Dobyns, 118 Fed. Cl. at 311-12. Because plaintiff cannot show how the alleged perjury
improperly influenced the court’s judgment or negatively affected the outcome of the
litigation, the court finds no abuse of discretion in the Special Master’s determination that
no further discovery on this issue was necessary.
e.

Mr. Harrington and the ROIs

Plaintiff alleges that Mr. Harrington wrongly withheld certain ROIs and
misrepresented their relevance to the court to prevent the evidence from being considered
at trial. Pl.’s Resp. 13, ECF No. 453. Plaintiff also alleges that ATF Assistant Director
Brandon replaced the PRB deciding official in a calculated effort to delay the production
of the ROIs. Id. The ROIs at issue ultimately were produced to plaintiff, were
introduced at trial, and were credited by the court. Dobyns, 118 Fed. Cl. at 312. Because
plaintiff has failed to show how the treatment of the ROIs adversely affected the outcome
of his case, the court finds no abuse of discretion in the Special Master’s conclusion that
no further discovery on this issue was necessary.
f.

The PRB Letters of Clearance

Plaintiff argues that if DOJ requested the issuance of the PRB letters of clearance
for the three ATF officials—whose conduct was in question, then the court must find that
DOJ engaged in witness and evidence tampering. Pl.’s Resp. 13, ECF No. 453. Plaintiff
introduced the PRB letters of clearance into evidence at trial, and the court considered
them. Dobyns, 118 Fed. Cl. at 320. Plaintiff has made no showing that the letters
prevented him from fully and fairly presenting his case or that they materially altered the
outcome of the litigation. Thus, the court discerns no abuse of discretion in the Special
Master’s conclusion that no further discovery on this issue was necessary.
g.

Deputy Director Carter’s Testimony

Plaintiff complains that Deputy Director Carter, who represented ATF during the
parties’ settlement negotiations and signed the executed agreement, gave inconsistent
testimony at trial as to whether the settlement agreement incorporated ATF’s orders.
Pl.’s Mot., ECF No. 352. Plaintiff further complains that defendant’s counsel rang

19

Deputy Director Carter’s cell phone at trial to signal him to give testimony that was
unfavorable to plaintiff. Id.
As the Special Master observed in his April 2015 Order, plaintiff elicited
testimony from Deputy Director Carter concerning the effect of the phrase “all laws” in
the settlement agreement, but the court rejected that testimony. Order 11, ECF No. 348
(citing Pl.’s Post Trial Br. 32, Dec. 9, 2013, ECF No. 261). Noting that the reference to
“all laws” in the settlement agreement was ambiguous and susceptible to different
meanings, id., the court allowed plaintiff to introduce parol evidence to prove that the
phrase “all laws” applied to ATF’s orders. Id. (citing Dobyns, 118 Fed. Cl. at 315).
“Plaintiff failed to provide any evidence suggesting that the word ‘law’ had a different
meaning in the second sentence of the Settlement Agreement than in the first.” Id.
(quoting Dobyns, 118 Fed. Cl. at 315). Thus, even if plaintiff were to establish that
defendant’s counsel had signaled Deputy Director Carter while on the stand, plaintiff
could not show how Deputy Director Carter’s coached testimony swayed the outcome of
the litigation. For this reason, the court does not find that the Special Master abused his
discretion in determining that no further discovery on this issue was necessary.
D. Assessment of Attorney Misconduct
The Federal Circuit remanded this matter to the court for the limited purpose of
deciding whether defendant’s attorneys committed fraud and whether such conduct
warranted relief under Rule 60. Dobyns v. United States, No. 15-5021, ECF No. 5 (Fed.
Cir. Dec. 18, 2014)(per curiam). After careful consideration of the evidence and the
arguments presented, the court concludes that if true, the alleged conduct of various
agency personnel throughout the course of this litigation fell well below the standard
expected of government officials. But, as the Special Master correctly concluded the
conduct did not effect a fraud on the court or fraud by a party pursuant to Rule 60. As to
the conduct of defendant’s counsel, the court leaves to the Office of Professional
Responsibility at the Department of Justice any determination as to whether disciplinary
action should be taken. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

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IV.

Conclusion

Based on the foregoing, plaintiff’s Rule 60 Motion is DENIED, defendant’s
motion is GRANTED, and plaintiff’s objection is DENIED. The court adopts the
Special Master’s Report and Recommendation, and his prior orders, including, the April
2015 Order, the May 2015 Order and the June 2015 Order, without alteration. xxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxx.
IT IS SO ORDERED.

s/ Patricia Campbell-Smith
PATRICIA CAMPBELL-SMITH
Chief Judge

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