Elliott v. Chairman of the United States Merits Systems Protection Board et al (RLJ2)
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge R Leon Jordan on 12/6/17. (c/m to Roger Elliott)(ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
CHAIRMAN OF THE UNITED STATES
MERIT SYSTEMS PROTECTION BOARD,
CHAIRMAN OF FEDERAL DEPOSIT
This matter is before the Court on the United States’ Motion to Dismiss [doc. 16],
the United States’ Brief in Support of the Motion [doc. 17], and Plaintiff’s Response
[doc. 19]. For the reasons herein, the Court will grant the United States’ motion.
A pro se plaintiff, Roger Elliott (“Mr. Elliott”) brings this suit as a “Motion to Set
Aside a Judgment for Fraud on the Court.” [Compl., doc. 1, ¶ 1]. Specifically, he petitions
this Court, under Federal Rule of Civil Procedure 60(d)(3),1 to set aside a judgment from
the United States District Court for the Eastern District of Virginia and the United States
Court of Appeals for the Fourth Circuit. [Id.]. He alleges that Defendants—in a defunct
Rule 60(d)(3) states that states that a court may “set aside a judgment for fraud on the
case in which he was a party before these courts—participated in a “scheme to directly
subvert the judicial process by forever preventing due process.” [Id. ¶¶ 1, 5]. In this vein,
he claims that Defendants “fabricated” its reason for terminating his employment with the
Federal Deposit Insurance Corporation (“FDIC”). [Id. ¶ 1]. The United States now requests
the dismissal of this action for lack of subject matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1) and for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). [Defs.’ Br. at 6–10, 11–16].
Under Federal Rule of Civil Procedure 8(a)(2), “[a] pleading that states a claim for
relief must contain . . . a short and plain statement of the claim showing that the pleader is
entitled to relief.” In determining whether to dismiss a complaint under Rule 12(b)(6), a
court accepts the factual allegations in the complaint as true and construes them in a light
most favorable to the non-moving party. See Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir.
1999). In cases in which a plaintiff is acting pro se, a court must “liberally construe” the
pleading and not reject it because it is “unartfully pleaded.” See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quotation omitted); but cf. McNeil v. United States, 508 U.S. 106, 113
(1993) (“[W]e have never suggested that procedural rules in ordinary civil litigation should
be interpreted so as to excuse mistakes by those who proceed without counsel.” (footnote
“[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions,” however, and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In addition, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
When considering a motion to dismiss, the Court ordinarily may not look outside
the complaint, but it does have license to take judicial notice of matters outside the
complaint and will do so in this case. In re Unumprovident Corp. Secs. Litig., 396 F. Supp.
2d 858, 873 (E.D. Tenn. 2005). The FDIC terminated Mr. Elliott in 1999 “for falsification
of official documents, failure to follow supervisory instructions, inappropriate or
disrespectful conduct, and absence without leave on two occasions.” Elliott v. FDIC, 305
F. Supp. 2d 79, 81 (D.D.C. 2004). Mr. Elliott appealed the FDIC’s decision to the Merit
Systems Protection Board (“MSPB”), which upheld his termination. Id. at 81–82.
Acting pro se, he then appealed the MSPB’s final order to the Eastern District of
Virginia, which dismissed his appeal. Id. Next, he filed an appeal with the Fourth Circuit,
which affirmed the district court’s decision. Id. at 82; Elliott v. FDIC, No. 01-1771 (4th
Cir. Oct. 17, 2001). The Supreme Court denied his petition for certiorari. Elliott v. FDIC,
No. 01-1771 (4th Cir. Oct. 17, 2001), cert. denied, 535 U.S. 989 (2002). He has since filed
actions in other federal courts, attacking the legitimacy of his termination in various
ways—without success. See Elliott v. FDIC, 306 F. App’x 565 (Fed. Cir. 2009); Elliott v.
Chairman of U.S. Merit Sys. Prot. Bd., No. 2:05-0115, 2006 WL 288161 (M.D. Tenn. Feb.
3, 2006); Elliott v. FDIC, 305 F. Supp. 2d 79 (D.D.C. 2004). This Court is now the latest
recipient of one of Mr. Elliott’s suits.
As an initial matter, the Court’s ability to exercise subject matter jurisdiction over
this case—which, according to Mr. Elliott’s allegations, derives from proceedings before
the Eastern District of Virginia and the Fourth Circuit—is dubious. See Laues v. Roberts,
2015 WL 1412631, at *4 (E.D. Mich. Mar. 25, 2015) (“[T]his Court has no jurisdiction to
upset or review a past judgment issued by another District Court[.]” (quotation omitted));
cf. Howat v. Kansas, 258 U.S. 181, 190 (1922) (“It is for the court of first instance to
determine the question of the validity of the law, and until its decision is reversed for error
by orderly review, either by itself or by a higher court, its orders based on its decision are
to be respected[.]” (emphasis added)); Moses v. Bus. Card Express, Inc., 929 F.2d 1131,
1136 (6th Cir. 1991) (“We have no appellate jurisdiction over decisions of district courts
outside the Sixth Circuit.” (citations omitted)); see also Lapin v. Shulton, Inc., 333 F.2d
169, 172 (9th Cir. 1964) (“[C]omity and orderly administration of justice demand that the
nonrendering court should decline jurisdiction of [a Rule 60(b)] action and remand the
parties for their relief to the rendering court[.]”); but see Standard Oil Co. of Cal. v. United
States, 429 U.S. 17, 18–19 (1976) (abolishing the appellate-leave requirement by holding
that a district court, to address a Rule 60(b) motion, does not first have to request
permission from the appellate court that affirmed the judgment); Nobrega v. Hinkle, 576
F. App’x 224, 224 (4th Cir. 2014) (describing the abrogation of the appellate-leave
requirement as “well settled” (citing id. at 17–19)); In re Sun Valley Foods Co., 801 F.2d
186, 189 (6th Cir. 1986) (acknowledging that a federal district court may review a state
court judgment if a party claims that it arose through fraud).
But the Court has no need to delve into this grainy issue—that is, into the specific
issue of whether a district court in one jurisdiction can entertain an independent action
under Rule 60(d)(3) to rescind another court’s judgment—because Mr. Elliott does not
plead sufficient facts to undergird his claim. “[F]raud upon the court . . . embrace[s] 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[.]” Gen. Med., P.C. v. Horizon/CMS Health Care Corp., 475
F. App’x 65, 71 (6th Cir. 2012) (quoting Demjanjuk v. Petrovsky, 10 F.3d 338, 352 (6th
Cir. 1993)). More specifically, a claim for fraud upon the court consists of five elements:
[C]onduct: (1) On the part of an officer of the court; (2) That is directed to
the “judicial machinery” itself; (3) That is intentionally false, wilfully blind
to the truth, or is in reckless disregard for the truth; (4) That is a positive
averment or is concealment when one is under a duty to disclose; (5) That
deceives the court.
Workman v. Bell, 245 F.3d 849, 852 (6th Cir. 2001) (quotation omitted). Mr. Elliott seems
to implicate a witness in the underlying litigation as the perpetrator of the alleged fraud
upon the court, having filed excerpts of an unspecified deposition—which appears to be
that of his former supervisor. [Dep. Tr., doc. 1-1]. Mr. Elliott seems to believe that this
testimony was intentionally false, or phrased differently, an act of perjury. [Compl. ¶ 1].
But even when the Court reads Mr. Elliott’s allegations liberally—stretching even
so far as to make the untenable inference that this testimony is likely a fabrication and not
merely an equivocation—Mr. Elliott still cannot mount a plausible claim for fraud upon
the court. See Rodriquez v. Honigman Miller Schwartz & Cohn LLP, 465 F. App’x 504,
510 (6th Cir. 2012) (“[The] alleged perjury of a witness is not a ground for [fraud upon the
court].” (emphasis added) (citation omitted)); see Bulloch v. United States, 721 F.2d 713,
718 (10th Cir. 1983) (“Fraud upon the court . . . is fraud which is directed to the judicial
machinery itself and is not fraud between the parties . . . false statements or perjury.”); see
also Apotex Corp. v. Merck & Co., 507 F.3d 1357, 1361 (Fed. Cir. 2007) (“Fraud upon the
court is typically limited to egregious events such as bribery of a judge or juror or improper
influence exerted on the court, affecting the integrity of the court and its ability to function
impartially.” (citation omitted)).
In short, Mr. Elliott avers only that a witness and not an officer of the court—such
as an attorney—committed the alleged fraud. See Workman, 245 F.3d at 852 (recognizing
that conduct “[o]n the part of an officer of the court” is a necessary element of fraud upon
the court (citation omitted)); see H.K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d
1115, 1119 (6th Cir. 1976) (“Since attorneys are officers of the court, their conduct, if
dishonest, would constituted fraud upon the court.”). And even if Mr. Elliott had pleaded
that an officer of the court committed the alleged fraud, he does not plead that the fraud
resulted in deception of the court—an element that he must also allege to establish a
plausible claim for fraud upon the court. Workman, 245 F.3d at 852. In sum, through the
prism of a liberal pleading standard, see Erickson, 551 U.S. at 94, he falls well short of
pleading a claim that shows he is entitled to relief under Rule 8(a)(2). The Court must
therefore dismiss this action. See Becker v. Ohio State Legal Servs. Ass’n, 19 F. App’x 321,
322 (6th Cir. 2001) (affirming the district court’s dismissal of a pro se complaint because
it contained “vague and conclusory allegations unsupported by material facts”); Janita
Theresa Corp. v. U.S. Attorney, No. 96-1706, 1997 WL 211247, at *1 (6th Cir. Apr. 28,
1997) (affirming the district court’s dismissal of a pro se complaint because its allegations
were “far too muddled to serve as a basis for a proper suit”).
Mr. Elliott fails to plead a plausible claim for fraud upon the court. The United
States’ Motion to Dismiss [doc. 16] is therefore GRANTED. This action is hereby
DISMISSED. All outstanding motions are DENIED as moot.
IT IS SO ORDERED.
s/ Leon Jordan
United States District Judge
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