Professional Documents
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176 FILED Objection To Special Master Report
176 FILED Objection To Special Master Report
176 FILED Objection To Special Master Report
TABLE OF CONTENTS
Page
TABLE OF CONTENTS....i
TABLE OF AUTHORITIES...v
I.
.
Summary of argument..1
A. The Standard of Review of the Special Master Reports findings
of fact and conclusions of law is de novo1
B. The Court should entirely reject the Special Master Report for
any of the several independent and sufficient reasons set
forth herein...........................................................................................2
C. The Special Master Report was certain to result in factual and
legal error when the Special Master refused to consider instances
of misconduct alleged in plaintiffs November 19, 2014 Rule 60
Motion and in plaintiffs Rule 60 opening memorandum...3
D. The Special Master Report contains the following factual and
legal error...4
E. The Special Master had no power to overrule Judge Allegras orders....10
ARGUMENT
II.
B.
i.
ii.
III.
The extremely simple nature of the August 28, 2014 Final Judgment
demonstrates why a determination of the trial court to sanction DOJ
attorneys would alter or amend the Final Judgment under Rule 60......21
IV.
V.
The evidence produced to date supports both the validity of Rule 60(b)(3)
theories of DOJ attorney misconduct and the continuation of discovery.
VI.
A.
B.
ii.
VII.
VIII.
iii.
iv.
B.
C.
B.
ii.
B.
IX.
B.
C.
i.
ii.
CONCLUSION....50
CERTIFICATE OF SERVICE...51
TABLE OF AUTHORITIES
Cases:
Page(s)
Page(s)
Page(s)
H.K. Porter Company, Inc., v. The Goodyear Tire & Rubber Company, Ind.,
536 F.2d 1115 (6th Cir. 1976)10,23
HSBC Bank USA, Natl Assoc., et al., v. Resh, et al.,
2014 U.S. Dist. LEXIS 16088 (S.D.W.VA. Hunt. Div. 2014)...31
In Re: Bailey, 182 F.3d 860 (Fed. Cir. 1999).41
In Re: E. I. du Pont de Nemours and Company
Benlate (R) Litigation, 918 F. Supp. 1524 (M.D.GA. 1995).16,24,35,39,42,
43,44,45,46,48
In Re: Enrique Antonio Ocon, 2007 Bankr. LEXIS 947
(Bk. S.D.N.Y. Miami Div. 2007).47
In Re: Rafail Theokary, 468 B.R. 729 (Bk. E.D.PA. 2012)38,44,46,50
International Fidelity Insurance Co. v.
The United States of America. 27 Fed. Cl. 107 (1992)..21,33
Irani v. Palmetto Health, et al., 2015 U.S. Dist.
LEXIS 81104 (D.S.C. 2015).32
Kingston, et al., v. Nelson, et al., 2008 U.S. Dist.
LEXIS 69745 (D.UT. C.Div.2008)...20
Koger v. Bryan, 523 F.3d 789 (7th Cir. 2008)....36
Link v. Wabash Railroad Company, 370 U.S. 626 (1962)..22
Marion v. City of Philadelphia et al., 1998 U.S. Dist.
LEXIS 11579 (E.D.PA. 1998)....34,36
Marshburn v. United States, 20 Cl. Ct. 706 (1990)...33
Martin, et al., v. Automobili Lamborghini Exclusive, Inc., et al.,
307 F.3d 1332 (11th Cir. 2002)..35,39
McGinnis v. New York University Medical Center,
2012 U.S. Dist. Lexis 9537 (S.D.N.Y. 2012)..32
Page(s)
Meloff v. New York Life Ins. Co., 51 F.3d 372 (2d Cir. 1995)32
Mundy et al., v. United States, 22 Cl. Ct. 33 (1990).....33
Murray v. Dillard Paper Co., et al.,
1999 U.S. Dist. LEXIS 22630 (E.D.VA. 1999)...34
Neeb-Kearney & Co., Inc. v. Dept. of Labor, et al.,
1992 U.S. Dist. LEXIS 7123, 2 (E.D.LA. 1992).34
Nielsen, et al., v. TIG Insurance Co., 2006 U.S. Dist. LEXIS 49002
(D.MT. Miss.Div. 2006)..34,37
Peter Kiewit Sons', Inc., v. Wall Street Equity Group, Inc.,
et al., 2012 U.S. Dist. LEXIS 69577 (D.NE. 2012)....39,48
Polk v. Local 16, International Union Bricklayers and
Allied Craftsmen, 1995 U.S. App. LEXIS 9758 (6th Cir. 1995)....24
Posey v. Lake Pend Oreille Sch. Dist. No. 84,
546 F.3d 1121 (9th Cir. 2008)..36
Quaker Chair Corporation v. Litton Business Systems, Inc.,
71 F.R.D. 527 (S.D.N.Y. 1976)34,35
Rezende v. Citgroup Global Markets, Inc., 2011 U.S. Dist.
LEXIS 45475, 2011 WL 1584603 (S.D.N.Y. Apr. 27, 2011)...49
Riverdale Mills Corp., v. United States et al.,
337 F. Supp. 2d 247 (D.MA. Cen. Div. 2004).32,36
Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir. 1978)48
Danny Sellers et al., v. United States, 110 Fed. Cl. 62 (2013)...40
Ian Owen Sharpe et al., v. United States, 112 Fed. Cl. 468 (2013)39,40,41
St. Regis Paper Co. v. United States, 368 U.S. 208, 229 (1961)...46
Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277 (8th Cir. 1995)....39
Page(s)
Statutes
18. U.S.C. 1001(a)2,10,24
18. U.S.C. 150328
18. U.S.C. 151228
Rules of the Court:
Rule 60, Rules of the United States Court of Federal Claims (RCFC)..Throughout
RCFC 56..22-23,36-37
District of Columbia Rules of Profession Conduct (ER)
ER Rule 3.3..9
ER Rule 3.4..9
ER Rule 4.1..9
ER Rule 8.3..9
ER Rule 8.4..9
Pursuant to Rule 53 of the Rules of the Court of Federal Claims (RCFC), plaintiff
Jay Anthony Dobyns herein objects to the Special Masters Final Report and
Recommendation dated July 23, 2015, Court of Federal Claims Docket Document
Number 430 (hereinafter No. __), incorporating the Special Masters Opinion and
Order dated June 26, 2015 (No. 411) (NB: in view of No. 430s incorporation of No. 411,
collectively referred to hereinafter as Special Master Report). Plaintiff Dobyns requests
that this Rule 60(b)(3) proceeding continue, and that the Chief Judge reject the Special
Master Report and permit plaintiff to obtain final document discovery and take
depositions of employees of defendant United States, the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) and of the United States Department of Justice (DOJ)
and allow this matter to continue through to final proceedings and closing memoranda.
I.
Summary of argument.
A. The Standard of Review of the Special Master Reports findings of fact
and conclusions of law is de novo.
RCFC 53 establishes a de novo standard of review of the Special Master Report:
(f) Action on the Masters Order, Report, or
Recommendations. [.]
(3) Reviewing Factual Findings. The assigned judge must
decide de novo all objections to findings of fact made or
recommended by a master, unless the parties, with the
assigned judges approval, stipulate that:
(A) the findings will be reviewed for clear error; or
(B) the findings of a master appointed under RCFC
53(a)(1)(A) or (C) will be final.
(4) Reviewing Legal Conclusions. The assigned judge
must decide de novo all objections to conclusions of law
made or recommended by a master.
Although the Special Master did not make formal findings of fact and conclusions of law,
such are discernable and are objected to in the format set forth herein.
1
B. The Court should entirely reject the Special Master Report for any of the
several independent and sufficient reasons set forth herein.
Plaintiff objects to the Special Master Report because the Special Master disregarded numerous directives from Judge Allegra to undertake various investigations in
particular form. The Special Master accepted an assignment with full notice of the
requirements to oversee the investigation but then promptly rejected and altered the
parameters of the investigation, finally cutting it off mid-discovery, without valid reasons
supported either by existing facts or controlling law. In the process, the Special Master
harmed the efficiency of the discovery process by limiting discovery just to matters
involving Christopher Trainor. The Special Masters disregard of express orders of
Judge Allegra also requires the belated conduct of the depositions and regrettably but
predictably, parts of the discovery phase to begin again, at least with respect to Valarie
Bacons conduct.
Before beginning the summary of objectionable factual and legal errors
committed in this Rule 60(b)(3) proceeding, plaintiff must point out the false choice
indeed, an only thinly-veiled threat that to challenge the Justice Departments breach
of ethical duties and to allege civil and criminal infractions committed during this lawsuit,
plaintiff must undergo an entirely new trial. This is not in the most remote sense
supported by Rule 60, by any federal law or by Judge Allegras instructions for this
proceeding, nor did the Special Master attempt to offer any support for the conclusion.
In so doing, the Special Master Reports attempted to deter plaintiff from further
pursuit of his claims that Justice Department attorneys lied to Judge Allegra, to plaintiff
and his counsel, and also to federal investigators in criminal violation of 18 U.S.C.
1001(a), as part of DOJs win-at-all-costs strategy. No such false choice exists between
2
seeking accountability and sanctions against the Justice Department for the conduct
described herein on the one hand, and retaining the victory derived from plaintiffs and
the Courts hard work during a three week trial in this matter. The Court should
disregard the Special Masters unsupported conclusion that all could be lost to plaintiff
by pursuing his Rule 60 motion.
C. The Special Master Report was certain to result in factual and legal error
when the Special Master refused to consider instances of misconduct
alleged in plaintiffs November 19, 2014 Rule 60 Motion and in plaintiffs
Rule 60 opening memorandum.
The Special Master committed legal error and fatally prejudiced these Rule 60
proceedings by rejecting Judge Allegras standard for fraud on the court and by
ignoring, without explanation or support in the law, Rule 60(b)(3)s other two prongs:
misrepresentation and other misconduct. The Special Master improperly rejected all of
the bases set forth in plaintiffs November 19, 2014 Rule 60 motion for indicative ruling
(No. 313), which Judge Allegra granted on December 1, 2014 (No. 316), grounds which
plaintiff repeated in his Special Master Rule 60 memorandum, pp. 7-8 (No. 337).
One particularly critical allegation was the distinct possibility, one certainly worthy
of discovery, that DOJ improperly influenced lead ATF settlement negotiator Ronnie
Carters trial testimony, not merely before trial but also by using electronic means during
his testimony. Had Ronnie Carter consistently testified that ATF orders were included
within paragraph ten of the September 20, 2007 settlement agreement between the
parties, not only would plaintiff have won his claim of breach of express terms of the
contract, but plaintiff could have sought damages for his lost benefits of the bargain.
When the Special Master failed to accurately portray the nature of Ronnie Carters trial
testimony in his April 7, 2015 order limiting the scope of the proceedings (No. 348,
3
plaintiff filed his April 12, 2015 motion for reconsideration (No.352), explaining both the
testimony of Carter and the potential impact of DOJs misconduct, as alleged. The
Special Master refused to consider this issue further and improperly limited the scope of
proceedings to merely the allegations regarding threats against Christopher Trainor. All
of this was incorrect and even rises to the level of clear legal error, especially in light of
Judge Allegra directing that the proceedings should follow plaintiffs motion.
D. The Special Master Report contains the following factual and legal error.
The Special Master improperly substituted his own judgment and orders for
Judge Allegras express and mandatory parameters of this Rule 60 proceeding, without
requesting or receiving from Judge Allegra any authorization to limit the proceeding or
to ignore express directives in existing opinions and orders establishing this proceeding.
1) The Special Master disregarded Judge Allegras December 1, 2014, Indicative
Ruling as follows:
a)
b)
in page 4, footnote 4 of his December 1, 2014 Indicative Ruling (No. 316) of the
standard for fraud on the court:
1. The Sixth Circuit has indicated that fraud on the court
consists of conduct:
1, On the part of an officer of the court; 2. That
is directed to the judicial machinery itself; 3.
That is intentionally false, willfully 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.
Demjanjuk v. Petrovsky, 10 F.3d 338, 348 (6th Cir. 1993),
cert. denied, 513 U.S. 914 (1994); see also 11 Wright &
Miller, supra, at 2860; 12 Moore's Federal Practice
60.21(4)(a) (3d ed. 2014).
Judge Allegras selection of a definition of fraud on the court was tailored to deal with
attorney misconduct and contained no element of reliance or requirement of alteration
of the trial outcome. The Special Master rejected what should have been the controlling
definition of fraud on the court, one that Judge Allegra, in his December 1, 2014, as a
practical matter, required the Special Master to utilize. Instead, the Special Master
improperly adopted a more limiting fraud definition standard in his April 7, 2015 Opinion
and Order (No. 348), utilized in ordinary common law fraud cases:
The word fraud has a common law meaning that has
always been defined to require that the person said to be
defrauded show prejudice from having been deceived. The
defrauded entity must show reliance that it did nor did not
do something because of the fraud. E.g., 7 Corbin on
Contracts, 28.14 (rev. ed. 2002).
The Special Master had the option of declining this very important assignment, or
else seeking from Judge Allegra a variance from the legal standards imposed upon this
5
Rule 60(b)(3) proceeding. Instead, the Special Master accepted the task but
immediately changed the scope of the inquiry from a judicially-intrinsic fraud on the
court standard as defined by Judge Allegra, to a common law fraud proceeding. By
doing so, the Special Master materially prejudiced plaintiffs rights and made the
eventual dismissal of this action a foregone conclusion. Logically extrapolated, the
Special Masters April 7, 2015 Opinion and Order made clear that he did not believe
these proceedings should have been ordered, adopting a definition of fraud and
rejecting the rest of Rule 60(b)(3) in a manner supportive of that conclusion. In so doing,
DOJ attorneys received carte blanche to escape meaningful discovery of attorney
misconduct as long as the witnesses ignored threats and held firm to truthful testimony.
c)
Even under that improper standard for fraud on the court, the
Special Master incorrectly analyzed the facts of this matter by failing to acknowledge:
i) any new findings of attorney fraud, misrepresentation or other misconduct would
require the issuance of a supplemental trial court opinion, which an altered or amended
trial court judgment would identify and adopt; ii) the issuance of any sanctions against
the Justice Department would have to be specifically noted in a supplemental or
amended trial court opinion and adopted in an altered and amended trial court
judgment; iii) if proven, suborned perjury of witness Ronnie Carter, the lead negotiator
for the September 20, 2007 settlement agreement, would require additional, limited
testimony as to whether the 2007 agreement included ATF Orders, with the Court
potentially awarding lost benefit of the bargain damages and thereby altering and
amending the judgment; and iv) the issuance of sanctions against DOJ in favor of
plaintiff Dobyns would have altered the Judgments monetary award in plaintiffs favor.
2)
February 23, 2015 Order were mandatory, and not discretionary with the Special
Master. Paragraph 15 of the Order states:
Consistent with RCFC 53(b)(2) and the provisions herein,
the assigned judge hereby specifies in the paragraphs that
follow:
(A)
the special masters duties, including any
investigation or enforcement duties, and any
limits on the special masters authority under
RCFC 53(c);3
Paragraph 21 of the Order establishing duties of the Special Master expressly states:
21. The special master will make findings assisting the
assigned judge in determining whether defendants attorneys, in
2
3
The Special Master refused to include within this Rule 60 proceeding the
enumerated allegations of misconduct set forth in plaintiffs November 19, 2014 (No.
4
313) Motion for Rule 60 Relief, and thereby disallowed investigation, discovery and
memoranda on those topics. 5 The Special Master did so out of the incorrect reasoning
that none of those allegations, if proven, affected the final judgment under Rule 60,
despite that (a) this was not Judge Allegras standard for fraud on the court, and (b)
plaintiffs allegations implicated the other two prongs of Rule 60(b)(3), i.e.,
misrepresentation and other misconduct by DOJ attorneys.
DOJs actions, as alleged, violate standards of the proscribed Rule 60(b)(3)
misconduct which Judge Allegra requested the Special Master investigate. Plaintiff
alleges that such 60(b)(3) conduct standards include violations of:
depositions on even the single remaining topic that the Special Master permitted for
investigation, plaintiffs allegations of threats against Christopher Trainor by Charles
Higman and David Harrington, and did so in the face of uncertain compliance by the
Justice Department with document production obligations. Judge Allegra and the
5
The parties agreed that the scope of proceedings would include plaintiffs enumerated
bases in his Rule 60 motion and in Judge Allegras December 1, 2014 indicative ruling:
During the telephonic status conference held by the court on
March 3, 2015, the parties expressed their agreement that
the allegations described in plaintiffs Rule 60 Motion, ECF
No. 313, will guide the special masters inquiry into this
matter. Plaintiff filed yesterday a memorandum elaborating
on the allegations found in his Rule 60 Motion.
Special Master Order, March 10, 2015, p. 12 (No. 340).
Federal Circuit Court of Appeals concluded that, at minimum, allegations that (1) retired
ATF Group Supervisor Charles Higman and certain DOJ Civil Division attorneys
attempted to intimidate witness and ATF Internal Affairs Division (IAD) Agent
Christopher Trainor, and (2) former ATF Office of Chief Counsel attorney of record
Valarie Bacon attempted to obstruct ATFs 2012 re-opening of the arson investigation of
Jay Dobyns residence, merited full investigation for potential fraud on the court or
misrepresentation or other misconduct under Rule 60. Plaintiff contends that fraud on
the court occurred as a result of DOJ lawyers now-documented agreement to withhold
from Judge Allegra the allegations of Higmans threat upon Trainor, an effort led by trial
counsel David Harrington and approved by then-Commercial Branch Director Jeanne
Davidson, and that more than sufficient evidence of alleged threats by Harrington
against Trainor exist to conduct depositions.6 Evidence produced to date documents
that attorney Harrington violated federal criminal statute 18 U.S.C. 1001(a) with his
intentional false statements to Judge Allegra and to Office of Professional Responsibility
(OPR) federal investigators on the subject of Valarie Bacon. Depositions are essential.
E. The Special Master had not power to overrule Judge Allegras orders.
The conduct of this proceeding was set by the trial judge; even defendants prior
invocation during these proceedings of H.K. Porter Company, Inc., v. The Goodyear
Tire & Rubber Company, Ind., 536 F.2d 1115 (6th Cir. 1976) establishes that Judge
Allegra, not the Special Master, regulated these proceedings: the scope of discovery is
within the sound discretion of the trial judge. Id. at 1119.
Judge Allegras December 1, 2014 indicative ruling leaves little doubt that: (1) he
wanted to know of claims of witness intimidation during trial; (2) the parties should take
evidence on the issue of potential threats; and, (3) if DOJ lawyers intentionally withheld
such information, he would have sanctioned offending attorneys. Judge Allegra had an
expectation and right to rely on DOJ attorneys truthfully reporting misconduct to allow
him to conduct inquiry and issue sanctions, if appropriate. The absence of such
disclosures injures the integrity of courtroom proceedings, including eliminating the
opportunity to explore any other potential instances of witness intimidation or tampering.
Adverse findings against lead trial counsel David Harrington are certain even
without plaintiffs depositions of ATF agents Trainor or Machonis, who are anticipated to
testify that they heard Harrington twice-threaten Trainors career if Trainor reported to
Judge Allegra the fact of Charles Higmans threatening voicemail, left the same day that
Trainor found a construction cone in his SUV exhaust pipe. Plaintiff also seeks to
depose Higman as to whether Harrington conferred with Higman (1) before the June 30,
2013 threatening voicemail from Higman to Trainor and simultaneous appearance of the
construction cone in Trainors SUV exhaust pipe (Item 1), or (2) before the subsequent
nine minute call with Trainor, in which Higman used legalistic terms as part of walking
back his implied threat to Trainor and his family (Item 2).7 If Harrington engaged in
In its response to the Special Masters June 26, 2015 advisory opinion, defendant
recited portions of Higmans deposition and trial testimony where Higman referred to
case law supporting the absence of ATF jurisdiction to investigate the arson at
11
Item 1, then he may have committed the crime of facilitating the intimidation of a federal
witness, and if he engaged in Item 2, then his actions assisted to cover up the threat or
act of intimidation. In this context, the appearance of three criminal defense attorneys to
defend the ordered depositions of four government attorneys is understandable. 8
As to whether DOJ attorneys had anything to do with Charles Higmans call to
Christopher Trainor, combined with a construction cone in the exhaust pipe of Trainors
SUV, the Special Masters termination of discovery made certain that plaintiff would
never learn DOJs role. Plaintiff considered an immediate appeal to Judge Allegra to
prevent the use of time in conducting a misdirected proceeding, but because Judge
Allegra was still available to correct Special Master error, plaintiff proceeding with the
Rule 60 investigation despite the Special Masters improper limits on the proceeding.
While the Special Master left such matters to be handled as DOJ personnel
issues, it was not the purpose of this Rule 60 proceeding, as Judge Allegra made clear
in his December 1, 2014 indicative ruling and in his February 23, 2015 Order
establishing the Special Masters duties, to leave to DOJ the discipline of its own
attorneys. This Court is in charge of its courtroom and trials, and Judge Allegra intended
this proceeding to bring accountability to DOJ attorneys for violating the Courts trust.
plaintiffs house. That Higman used legalistic terms at his depositions and trial after
conferring with DOJ Civil Division attorneys is exactly plaintiffs point. Plaintiff alleges
that David Harrington, at minimum, may have improperly conferred with Charles
Higman before the nine minute telephone call between Higman and Trainor, instructing
Higman on how to deflate the previous voicemail threat and construction cone intrusion.
8
Attorneys specializing in white collar criminal defense were hired by DOJ attorneys
Harrington, Niosi, Onyema and Bouman (formerly ATFs Office of Chief Counsel), to
defend their depositions, evidencing a facial concern about potential criminal liability.
12
13
emphasize to the federal government and the Justice Department that civil and criminal
laws apply equally to government and private attorneys, whether DOJ agrees or not.
The Special Masters conclusion was that, as long as an intimidated witness
demonstrates the fortitude and personal courage to testify truthfully, no injury to the
integrity of the proceedings occurred and no fraud upon the court took place. Plaintiff
contends that Judge Allegra would have disagreed with the Special Master in light of the
scope of the proceedings described in the February 23, 2015 Order, the intent of the
fraud and misconduct proceedings as discussed in the December 1, 2014 indicative
ruling, and the express language of Rule 60(b)(3). Plaintiff objects to the Special Master
Reports rejection of directives in those enabling orders by preventing depositions and
to the Reports termination of these Rule 60 proceedings.
ARGUMENT
II.
14
Dixon, et al., v. Comm. of Internal Revenue, T.C. Memo 2006-190; 2006 Tax Ct. Memo
LEXIS 193, at 8 (U.S. Tax Ct. 2006). The Dixon decision guides the Special Master to
follow Federal Circuits remand directives for conduct of the Rule 60 proceedings
described in Judge Allegras December 1, 2014 indicative ruling:
The "law of the case" doctrine requires a decision on a legal
issue by an appellate court to be followed in all subsequent
proceedings in the same case. Herrington v. County of
Sonoma, 12 F.3d 901, 904 (9th Cir. 1993). [.] Upon remand
of the case, a corollary of the law of the case doctrine, known
as the rule of mandate, requires the lower court to implement
both the letter and the spirit of the appellate court's mandate.
The rule of mandate is similar to, but broader than, the law of
the case doctrine and prohibits the lower court from
disregarding the appellate court's explicit directives.
Herrington v. County of Sonoma, supra at 904.
Dixon, supra, at 8 (allowing the misconduct proceeding to continue).
Judge Allegras October 1, 2012 order denying the parties cross-motions for
summary judgment invoked the doctrine of law of the case in barring the re-visitation of
prior rulings by the trial court regarding the direction of trial level proceedings:
See Dobyns, 91 Fed. Cl. at 417-18; see also SGS-92-X003
v. United States, 74 Fed. Cl. 637, 655 (2007). These
arguments are no more persuasive the second time around.3
Indeed, they are among several found in defendant's briefs
that now, and for any future trial, are governed by law-of-thecase considerations. See Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 815-16, 108 S. Ct. 2166, 100
L. Ed. 2d 811 (1988); see also Alli v. United States, 105 Fed.
Cl. 440, 2012 WL 1708307, at *4 n.3 (Fed. Cl.).
Dobyns v. United States, 106 Fed. Cl. 748, 750 (2012). Judge Allegra made clear in his
December 1, 2014 Rule 12.1 indicative ruling, and the Federal Circuit agreed in
remanding the matter, that the trial court, where the alleged misconduct occurred, is
where the investigation should occur, as opposed to DOJ personnel proceedings:
15
16
Paragraph 4 of Judge Allegras February 9, 2015 Order (No. 330) states: the special
master will exercise the full range of authority permitted by the courts rules, to and
including: (i) the taking of discovery of all forms, including depositions and all forms of
electronically stored information (ESI).
Paragraph 17 of Judge Allegras February 23, 2015 Special Master Order states:
17. Pursuant to RCFC 53(c)(1), the special master may:
(A) regulate all proceedings;
(B) take all appropriate measures to perform the assigned
duties fairly and efficiently; and
(C)
exercise the assigned judges power to compel, take,
and record evidence, including the resolution of any issues
regarding the admissibility of evidence.
Judge Allegras Order establishing the Special Masters duties states at paragraph 22:
Consistent with this mandate, the central functions of the
special master are to: (A) Gather evidence to include
documents of all forms (including all forms of electronically
store (sic) information (EDS)); audio recordings, the taking of
oral or video depositions to include the depositions of any
attorney, or other government officer or other individuals
subject to this order; and the taking of oral testimony []
And finally, page six of the Courts December 1 Indicative Ruling, paragraph 3, states:
If the Federal Circuit remands the action, the court will allow
both parties an opportunity to present argument, as well as
relevant evidence and other testimony, before ruling on a motion
for reconsideration under RCFC 60. See Hazel-Atlas Glass
Co., 322 U.S. at 251; 11 Wright & Miller, supra, at 2870.
The Special Master Report breaches or contradicts these duties, powers and
expectations awarded to and accepted by the Special Master from Judge Allegra.
C. The Special Master Report contradicted the order for eight depositions
without controverting its reasoning.
i.
17
At page 13 of the parties Joint Status Report filed April 10, 2015 (No. 350),
defendant United States conceded the need for depositions:
The United States concurs with plaintiff that the depositions of
the following five individuals is appropriate.
a.
b.
c.
d.
e.
Christopher Trainor;
Daniel Machonis (who has recently left ATF);
David Harrington;
Corinne Niosi; and
Rachel Bouman.
Christopher Trainor
Daniel Machonis
David Harrington
Corinne Niosi
Rachel Bouman
The Special Master conceded in prior opinions that the unique nature
of this Rule 60 inquiry requires investigation and discovery.
The Special Masters April 7, 2015 Opinion and Order, p. 12, (No. 348) noted the
need for discovery of the accusations regarding threats against Agent Trainor:
However, a different issue is presented as to the behavior of
the DOJ attorneys who may have learned of the Higman
threat and failed to bring it to the courts attention, or even
worse, threatened Trainors career when he suggested
informing the court. The attorneys conduct may well have
threatened the administration of justice, although it is unclear
at this stage how such a threat might have impacted the
judgment in this case or plaintiffs ability to present his case.
This matter must be investigated by the special master.
The Special Master soberly characterized the gravity of the allegations of attorney
misconduct in his June 19, 2015 Opinion and Order (No. 406):
[W]hile it is not denominated as one of the factors in the case
quoted above, it surely is of significance that this is serious
litigation involving a specific claim of witness intimidation by
lawyers for the United States that lead a judge to require an
investigation by a special master.
Id. at 11. In that same June 19, 2015 Opinion, the Special Master concluded:
In this case, the court found that a witness who had given
detailed testimony about the failures of the ATF to protect a
former agent, thereby harming the governments case, may
have been threatened with damage to his career if he told
that he had been threatened. While the truth of that
assertion is yet to be tested, if true, it may constitute the
19
Department should not be able to use its delay in production and failed assertion of the
deliberative process privilege in order to avoid depositions. Kingston, et al., v. Nelson, et
al., 2008 U.S. Dist. LEXIS 69745, 4 (D.UT. C.Div.2008); Davis v. Calvin, et al., 2008
U.S. Dist. Lexis 116529, at 3 (E.D.CA. 2008).
The Special Masters order permitting depositions was consistent with Judge
Allegras published opinion denying defendants motion to dismiss plaintiffs complaint:
[A]s noted by the drafters of Rule 26, [t]he purpose of
discovery is to allow a broad search for facts, the names of
witnesses, or any other matters which may aid a party in the
preparation or presentation of his case. Fed. R. Civ. P. 26(b)
advisory committee notes, 1946 amend.; see also Osage
Tribe of Indians of Okla. v. United States, 84 Fed. Cl. 495,
497 (2008). The year after these comments were written, the
Supreme Court emphasized that [m]utual knowledge of all
the relevant facts gathered by both parties is essential to
proper litigation. Hickman v. Taylor, 329 U.S. 495, 507
(1947). For discovery to have that leveling effect
particularly, where there is an initial informational imbalance
among the parties, and, especially, where one of the litigants
is a government agency that has privileged access to
information a claimant must not be required, ab initio, to
aver all or nearly all the facts subservient to its claims. See
al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009) [.]
Jay Dobyns v. United States, 91 Fed. Cl. 412, 426-427 (2010). Plaintiff submits that
Rule 60(b)(3) depositions and final briefing should proceed for the reasons to follow.
20
III.
The extremely simple nature of the August 28, 2014 Final Judgment
demonstrates why a determination of the trial court to sanction DOJ
attorneys would alter or amend the Final Judgment under Rule 60.
The language of the August 28, 2014 Final Judgment, Document No. 288, is
simple, making this Rule 60 analysis equally non-complex. The Final Judgment states:
In the United States Court of Federal Claims No. 08-700 C
JAY ANTHONY DOBYNS
v.
THE UNITED STATES
JUDGMENT
s/Debra L. Samler
Deputy Clerk
This Rule 60 proceeding could alter or amend the Judgment in several ways.9
First, any findings of fact, conclusions of law or descriptions of sanctions regarding DOJ
attorney misconduct would appear in a re-issued trial opinion, with a new date, or in a
supplemental trial opinion; either change would be set forth in a final judgment as an
alteration or amendment to the judgment.
Plaintiff may simultaneously pursue all three Rule 60(b)(3) theories fraud. International
Fidelity Insurance Co. v. The United States of America. 27 Fed. Cl. 107, 109 (Cl.Ct.
1992). (Under the federal rules, parties may assert inconsistent allegations, and will not
be forced to select a theory on which to seek recovery. citing Molsbergen v. United
States, 757 F.2d 1016, 1018-19 (9th Cir. 1985)).
21
Second, if the Court sanctions DOJ attorneys and orders moneys to be paid to
the court registry or to the plaintiff, such would be noted in an amended or altered final
judgment. Third, if the trial judge determined that fraud on the court, misrepresentation
or misconduct by DOJ occurred, such witness intimidation and tampering by DOJ, then
the underlying damages to plaintiff might increase as part of continuing violations by
DOJ of the covenant of good faith and fair dealing found in the September 16, 2014
Trial Opinion to have existed in the parties September 20, 2007 settlement agreement.
Plaintiff must pursue discovery to argue that the Trial Opinion must be
supplemented and the Final Judgment alter or amended, and that sanctions against
DOJ attorneys should issue, with sanctions and other damages paid to plaintiff. The
Special Master Report has taken those opportunities entirely from plaintiff, thereby
substantively voiding much of Judge Allegras December 1, 2014 Indicative ruling and
February 23, 2015 Order10, despite Rule 60(b)(3)s language.
IV.
10
Judge Allegras February 23, 2015 reference in his Order to Rule 60 violations by a
party, i.e., the United States, includes fraud upon the court attempted by civil division
attorneys. The Supreme Court has held that an attorneys knowledge and behavior is
imputed to the client: each party is deemed bound by the acts of his lawyer-agent and
is considered to have "notice of all facts, notice of which can be charged upon the
attorney. Link v. Wabash Railroad Company, 370 U.S. 626, 633-34, 1962) (citing Smith
v. Ayer, 101 U.S. 320, 326, 25 L. Ed. 955).
22
termination of this proceeding will de facto enter judgment by leaving the present
August 28, 2015 judgment in place without alteration or amendment:11
If "matters outside the pleading are presented to and not
excluded by the court, [a motion to dismiss for failure to state
a claim] shall be treated as one for summary judgment." Fed.
R. Civ. P. 12(b). See Darring v. Kincheloe, 783 F.2d 874 (9th
Cir. 1986). Pleadings in this case were accompanied by
depositions. Summary judgment was procedurally proper.
First Pacific Bancorp, Inc., et al. v. Bro, et al., 847 F.2d 542, 545 (9th Cir. 1988). The
same principles establishing a right under RCFC 56 to complete necessary discovery
before a trial court action is terminated, support plaintiffs Rule 60 deposition requests:
(d) When Facts Are Unavailable to the Nonmovant.
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
Federal courts require the completion of discovery before allowing summary
judgment. Wong v. Hawaii Medical Center-West LLC, et al., 2009 U.S. Dist. Lexis
96254, at 5-6 (D.HI. 2009). Where an RCFC 56(d) declaration proves that a deposition
would aid in defense of a summary judgment motion, the deposition should be allowed:
Plaintiff [...] averred that summary judgment would be premature
in part because Plaintiff has taken no depositions. [.] Although
summary judgment can be "an effective device to protect parties
11
Defendant, in its Reply (No. 424) to plaintiffs response to the Special Masters June
26, 2015 Order proposing to terminate these Rule 60 proceedings, overclaimed its
common law by arguing that the standard for Rule 60 discovery was different than for
entitlement to discovery under Rule 56. Not a single case cited by defendant stood
for that specific argument, limiting depositions, in a Rule 60(b)(3) proceeding in contrast
with Rule 56. To the contrary, defendants recitation of H.K. Porter Co., Inc. v.
Goodyear, 536 F. 2d 1115, 1119 (6th Cir. 1976) supports plaintiffs RCFC 60(b)(3)
rights: [s]ince attorneys are officers of the court, their conduct, if dishonest, would
constitute fraud on the court.
23
DOJ_CIVIL00000509-510:
DOJ_CIVIL00000288-289
DOJ_CIVIL00000392
DOJ_CIVIL00000291-300
III.
Harrington and Bouman then brought ATF Assistant Director Michael Gleysteen
into their effort to contain the threat information (DOJ_CIVIL000000481-482).
25
As set forth in Exhibit C hereto, Harrington conceded that the Higman voicemail,
if a threat, constituted a crime (DOJ_CIVIL0000087):
A threat by Higman (if here had been one) would be a
criminal matter If there was some threat that was an
attempt to influence trial testimony, this would be a matter to
raise with the Court.
Also set forth in Exhibit C hereto, Snee expressed the seriousness of Higmans
conduct and that Judge Allegra would want to be informed (DOJ_CIVIL0000093):
What the best case which could be made that we should
bring it to the Courts attention? That witness X in this case
believes he has been threatened about his testimony in this
case by witness Y from this case. Arguably, that may be
relevant for the judge to know
Another way to look at it is - if you were in the judges shoes,
would you want to know of the situation? What if (heavens
26
drafted entirely by DOJ attorneys with no apparent input by Gleysteen, to serve the
needs of DOJs position. DOJ, the Office of Inspector General (OIG) and the Special
Master repeatedly focus on one statement from Trainor in his OIG interview conducted
more than a year following the threat events, for their conclusion there was no threat
and therefore no need for investigation or reporting, and a mid-stream email that
Higman might have been intoxicated. Those are two statement by Trainor taken out of
context and used to dismiss all of the complaints and threat notification by Trainor, a
matter which plaintiff would demonstrate from depositions and in closing argument.
What is clear is that Higman asked Trainor to interview him and then alter his
report of investigation. Such evidence tampering, coupled with intimidation and threats,
was required to be reported to the trial judge as obstruction of judicial proceedings
under 18 U.S.C. 1503 and 18 U.S.C. 1512:
Tampering with a witness, victim, or an informant; whoever
knowingly uses intimidation, threatens, or corruptly
persuades another person, or attempts to do so, or engages
in misleading conduct toward another person, with intent to,
(1) influence, delay, or prevent the testimony of any person
in an official proceeding; (B) alter, destroy, mutilate, or
conceal an object with intent to impair the objects integrity or
availability for use in an official proceeding.
Trainor withheld the threat information for a year in order to allow Judge Allegra
to file his opinion, and in that year, saw that Higman did not act on his threats. In the
interim, Trainors family suffered fear and anxiety, and the issue is what DOJ should
have done at the time, with what they knew then. By investigating those threats, Judge
Allegra and plaintiff would have determined if Civil Division (Harrington) had anything to
do with Higman making the call to Trainor, and DOJ (Harrington and Bouman) had
anything to do with ATF closing down the investigation without interviewing Higman.
28
As for allegations about Valarie Bacon, attorneys Davidson, Kinner, Corrine Niosi
and P. Davis Oliver were made aware of the allegations by Harringtons March 21, 2013
email, 1:46 pm (DOJ_CIVIL00000354; response to plaintiffs counsels email with the
Subject: ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted
obstruction of justice; Dobyns v. U.S.; 08-700c, Importance: High, To: Davidson,
Kinner, Niosi and Oliver). Harrington was aware of Bacons attempted obstruction
before trial, as demonstrated in his email to Davidson. DOJ_CIVIL00000359-364):
Jeanne, this is not a new allegation. Additionally, assertions
about the re-opening of an ATF investigation are nonsense.
In response to plaintiffs counsels April 9, 2013 6:55 pm email, Subject: Scope
of defendant actors; Referral to OIA of attempted obstruction of justice by Valerie
Bacon; Dobyns v. U.S.; 08-700c (DOJ_CIVIL00000360-364), Harrington emailed to
Rachel Bouman, Niosi and Oliver, again pre-trial, on April 10, 2013, 10:23 pm
(DOJ_CIVIL00000359): Here is last nights e-mail from Mr. Reed. Is there an active
inquiry into Valarie Bacons attempts to obstruct justice as Mr. Reed alleges? If so, by
whom and what is its current status? Thanks.
Nevertheless, during in-chambers discussion and mid-trial on June 17, 2013,
Judge Allegra asked Harrington if allegations of Bacons statement had come up before
trial. Harrington denied any prior knowledge of Bacons attempted obstruction. In his
response to OPR, Harrington does not correct his misrepresentations to this court. He
thus re-affirmed his earlier false statement made in-chambers on June 17, 2013 to
Judge Allegra, he did not recall any such allegations regarding Valerie Bacon
(DOJ_CIVIL00000359). Harrington made several false statements to OPR, including:
29
I have no specific recollection of actions taken upon receiving the March 21 and
April 9 2013 e-mails from Mr. Reed.
Falsifying information to OPR federal investigators is a violation of 18 U.S.C. 1001 (a).
The following is a summary of the documents found in Exhibit C, demonstrating a
concerted effort by Civil Division to withhold information and make material misrepresentations in violation of Rule 60.
Trainor believed that Higman threatened him
Far from watering down the nature of the threat to his family, and Trainor asked
that Gleysteen bring serious investigative attention to the threats. DOJ_CIVIL
0125.
Even DOJ initially called the voicemail a Threat. (DOJ_CIV 0521 Subject: FW:
Here is the recording of the threat; Attachments: HIGMAN Threat.m4a - Rachel
A. Bouman); (DOJ_CIVIL 0137 Please call it "Higman Message." Thanks.)
30
To that end, Rachel Bouman wrote Gleysteens declaration for him. (DOJ_CIVIL
0527 - I spoke with Michael this morning and am prepared to prepare a draft
declaration for him, but I can go up to his office and call you from there if you
want to speak with him directly.)
Other legal team members participated in draft the declaration for Michael
Gleysteen Gleysteen (DOJ_CIVIL 0534), Trainors ATF supervisor, to water
down the possible threat nature of Higmans call. (DOJ_CIVIL 0212; DOJ_ATF
0907 - From: Niosi, Corinne - Declaration of Michael Gleysteen 7-19-13
(Dobyns).docx I think this looks good and meets our needs. I have some
suggested edits, in redline.); (DOJ_CIV 0215) (From: Harrington, David (CIV),
Subject= RE: Declaration of Michael Gleysteen 7-19-13 (Dobyns).docx
Corinnes revisions look good. I made a few possible edits of my own)
The legal team knew that Judge Allegra would want the threat information, but
withheld it from him anyway.
(DOJ_CIVIL 0087 - From: Harrington, David To: Snee, Bryant; Kinner, Donald
Cc: Niosi, Corinne Subject: RE: Higman Issue The strongest argument for
disclosure is probably the fact that Judge Allegra takes a broad view of what
relates to the case and what he should hear about.)
(DOJ_CIVIL 0089 And if we go only part way, do we run the risk that Judge
Allegra thinks we have not told him something that he considers to be
important?)
Niosi also knew that Judge Allegra would want the threat information.
(DOJ_CIVIL 0243 From Niosi, Corinne To Harrington, David Subject Fw:
Higman Issue I dont want to muddy it up but we need to consider Bryants
question about whether Allegra would want to know about this against the
backdrop of the Valarie Bacon thing and Trainors horse trading testimony.)
Bryant Snee also knew that Judge Allegra would deem it worthy of reporting.
(DOJ_CIVIL 0002); (DOJ_CIVIL 0939)
31
ATFs Chief counsel wanted to disclose the facts to Judge Allegra. (DOJ_CIVIL
0125) (David-- Our Chief Counsel would like us to file something with the court
on Monday.Thanks, Rachel)
DOJ_CIVIL 0232 (Attorney Niosi told Harrington that if Trainor reported the threat
in court, DOJ may need to disclose everything.)
(DOJ_ATF 0959) (From: Gross, Charles R. To: Bouman, Rachel A. Subject: Re:
Chris Trainor Witness Issue in Dobyns Rachel: [.] my advice would be that
our attorneys bring this to the Courts attention on Monday.);
(DOJ_CIVIL 0087) And even Harrington emailed the trial team that Judge Allegra
would want to know the information: The strongest argument for disclosure is
probably the fact that Judge Allegra takes a broad view of what relates to the
case and what he should hear about.
(DOJ_CIVIL 0089) DOJs deliberations revealed doubts that should have been
resolved by reporting the threat to Judge Allegra. Harrington emailed the legal
team:
Rachel said that ATF thinks the "safer" course is to raise matters
affirmatively. ATF is still vague about what exactly they think should be
raised with the court. [.] And if we go only part way, do we run the risk
that Judge Allegra thinks we have not told him something that he
considers to be important?
Jeanne Davidson was involved in the directive not to report the threats to Judge
Allegra. (DOJ_ATF 0965) (From: Gross, Charles R. - To: Bouman, Rachel A. Re:
32
Higman Issue Ive known Jeanne Davidson for almost 20 years, and I trust her
judgment)
(DOJ_ATF 0965 On Jul 20, 2013, at 1:51 PM, "Bouman, Rachel A."
<RacheI.Bouman@atf.~ov> wrote: Ultimately, the decision will be made by
Jeanne Davidson [.] I also told David that the Judge is already suspicious of
us and we dont want to look that way again.)
(DOJ_CIVIL 0241) (If he walks into the courtroom with a document in his hand,
then that will be a red flag.)
(DOJ_CIVIL 0061) Harrington: and then we tell the Court that Trainor has his
own personal complaint about ATF handling of a supposed threat against him,
that we have looked at it, that he needs to address it internally at ATF (And
DOJ_CIVIL 0068)
DOJs Bench Briefing (DOJ_CIVIL 0251) to be filed with the Court if Trainor
disclosed the threat allegations, contained false statements and falls short of full
and accurate: Similarly, during the call, Mr. Higman did not attempt to influence
SA Trainors trial testimony. Mr. Higman merely requested that he be
interviewed; SA Trainor said that request would not be granted. To the contrary,
Higman asked that Trainor interview Higman and alter his report of investigation
afterwards.
VI.
A party may take another party's duly noticed deposition in person as a matter of
right. Fed. R Civ. P. 30. Davis v. Calvin, et al., 2008 U.S. Dist. Lexis 116529, at 3
33
Federal common law is clear that summary judgment should not be entered until
discovery is complete: First, the motion was clearly premature. It was filed before
discovery was complete and even before plaintiffs were able to depose Hopkins. On this
basis alone, the motion must be denied. Dibella, et al., v. Hopkins, 2002 U.S. Dist.
Lexis 19844, at 2 (S.D.N.Y. 2002) (citing See Hellstrom v. U.S. Dep't of Veteran Affairs,
201 F.3d 94, 97 (2d Cir. 2000); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d
Cir. 1995); Fed. R. Civ. P. 56(f); Adams v. Richardson, 351 F. Supp. 636, 637 (D.D.C.
1972) (In an earlier proceeding, defendants' motion to dismiss or for summary
judgment was denied in order to allow plaintiffs to engage in and complete discovery.
Such discovery, inter alia, included a very lengthy deposition of defendant Pottinger.)
Deposition allowance is a core prerequisite to entry of summary judgment. First
Pacific Bancorp, Inc., supra, at 545; Irani v. Palmetto Health, et al., 2015 U.S. Dist.
34
LEXIS 81104, at 8 (D.S.C. 2015). The D.C. Circuit denies summary judgment if
discovery has been inadequate.12 Bynum, et al., v. District of Columbia, 215 F.R.D. 1, 45 (D.D.C. 2003); Commodore-Mensah v. Delta Air Lines, Inc., 842 F. Supp. 2d 50, 53
(D.D.C. 2012). Similarly, the Court of Federal Claims denies summary judgment
motions if not enough evidence has emerged from discovery. Mundy et al., v. United
States, 22 Cl. Ct. 33, 36 (1990); International Fidelity Ins. Co., 27 Fed. Cl. at 111;
Marshburn v. United States, 20 Cl. Ct. 706, 709 (1990).
iii.
Plaintiff Dobyns right to take depositions is essential to his ability to avoid entry
of summary judgment. BNSF Railway Company v. L.B. Foster Company, 2012 U.S.
Dist. LEXIS 117237, 1-2 (D.NE. 2012). The district court for Nebraska ruled that a
respondant to a summary judgment motion is entitled to take necessary depositions:
BNSF has established that it cannot present facts essential to its opposition to Foster's
summary judgment motion without having the opportunity to depose Foster's corporate
designee and Sidney Shue [.] Id. at 2. Federal common law is replete with instances
of federal courts denying entry of summary judgment so that respondents can take
critical depositions. Cardinal Health, Inc., et al., v. Delivery Specialists, Inc., 2011 U.S.
Dist. LEXIS 29891, at 4 (S.D.FL. 2011) (After completion of Mr. Orie's deposition, the
Defendant may file a supplement to its Opposition to the Plaintiffs' Motion for Summary
12
Hidalgo v. Winding Road Leasing Corp., et al., 2013 U.S. Dist. Lexis 66623, 5
(E.D.N.Y. 2013) (Defendants' motion for summary judgment is denied [.] parties are
directed to complete expert discovery); McGinnis v. New York University Medical
Center, 2012 U.S. Dist. Lexis 9537, at 3 (S.D.N.Y. 2012) (where there is a likelihood of
further discoverythe Court dismisses without prejudice Defendant's motion for
summary judgment (citations omitted)).; Riverdale Mills Corp., v. United States et al.,
337 F. Supp. 2d 247, 250 (D.MA. Cen. Div. 2004).
35
Judgment); Gardias v. The California State U., et al., 2010 U.S. Dist. LEXIS 97575, at 2
(N.D.CA San Jose Div. 2010) (Gardias shall appear for his deposition [.] The
deadline for hearing summary judgment motions is re-set); Harris v. NCO Financial
Systems, et al., 2009 U.S. Dist. Lexis 15037, 3 (D.C.E.D.PA. 2009) (Discovery []
including plaintiff's deposition, is not complete. Upon completion, summary judgment
may again be moved.)
iv.
Chair Corporation v. Litton Business Systems, Inc., 71 F.R.D. 527, 530-531 (S.D.N.Y.
1976). The Court should not adopt the Special Master Reports termination of
proceedings where the Report illogically extrapolates from half-completed discovery:
[D]efendant's opposition rests merely upon the asserted futility
of further discovery [] these contentions are without merit. []
It is precisely for the purpose of testing the truth of such statements that the opportunity for live cross-examination is provided. [.] it seems inappropriate to deny plaintiff the opportunity to depose Messrs. Schneiderman, Tischio, and Silver.
Id. at 531-532. The Quaker Chair decision supports a plaintiff such as Jay Dobyns, who
has no access to witnesses in order to file Rule 56(f) affidavits. Id. at 533-534. (Plaintiff
must complete its depositions.).
C. In the alternative to depositions, an evidentiary hearing to determine
fraud upon the court, misrepresentation or other Rule 60(b)(3)
misconduct is the only appropriate option.
Plaintiffs request to take depositions is particularly appropriate in light of the
normal conduct of an evidentiary hearing for Rule 60(b)(3) allegations of fraud. Charter
Practices Intl, v. Robb, 2015 U.S. Dist. LEXIS 34111, 2 (D.CT. 2015); In Re: E. I. du
Pont de Nemours and Company, 918 F. Supp. at 1540 (This Court has the power, the
authority, and the jurisdiction to investigate allegations of a fraud on the Court and a
fraud on the judicial system); Martin v. Automobili Lamborghini Exclusive, Inc., 307
F.3d 1332, 1335 (11th Cir. 2002). Termination of discovery should lead to an evidentiary
hearing as an unavoidable alternative, unless good cause exists. Zimmerman v. Poly
Prep Country Day School, 2012 US Dist. LEXS 78816 26-27 (EDNY 2012).
37
VII.
38
13
There is no evidence that attorneys Harrington and Niosi were sworn under oath
before giving their statements to OPR investigators, similar to the Fifth Circuits rejection
of unsworn, self-serving attorney statements in United States v. Bowen, supra.
39
i.
The Court can vacate the Final Judgment and issue sanctions
against the Justice Department for the alleged fraud on the court,
misrepresentation or other misconduct.
The trial judge may vacate the August 28, 2014 Judgment and alter and amend it
under Rule 60 to order sanctions against DOJ, with or without payment to plaintiff. See
Hartman, supra at 37; Florida Evergreen Foliage, 135 F. Supp. 2d at 1287 (federal
court retains inherent authority to set aside a federal judgment for "fraud on the court,"
[] sanctions and other criminal penalties can be imposed for criminal contempt and
other litigation-related crimes.); In Re: Rafail Theokary, 468 B.R. 729, 749 (Bk. E.D.PA.
2012) (citing Chambers, 501 U.S. at 44, courts have inherent power to set aside their
own judgments upon finding that they were fraudulently obtained.).
Federal courts also have inherent power to sanction misconduct in proceedings.
Martin, et al., v. Automobili Lamborghini Exclusive, Inc., et al., 307 F.3d 1332, 13361337 (11th Cir. 2002). The inherent power of courts to sanction misconduct has been
held to apply to attempts, successful and otherwise, to commit fraud upon the court.
Videojet Systems Intl, Inc., v. Eagle Inks, Inc. et al., 2000 U.S. App. LEXIS 31337, at 23 (Fed. Cir. 2000); In Re: E. I. du Pont de Nemours and Co., 918 F. Supp. at 1540; in
accord, Peter Kiewit Sons', Inc., v. Wall Street Equity Group, Inc., et al., 2012 U.S. Dist.
LEXIS 69577, at 14 (D.NE. 2012) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44
(1991); Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 280 (8th Cir. 1995).
This inherent power to control conduct and secure proper respect for truth and
candor is a broad authority and intrinsic to the fabric of integrity in the courtroom 14:
14
[U]nder its inherent authority, the Court may do whatever is reasonably necessary to
deter abuse of the judicial process and assure a level playing field for all litigants,
Charter Practices International, supra at 2.
40
If a partys conduct did not amount to fraud [on the court], courts may use
sanctions in cases involving bad faith that cannot be otherwise reached by rules or
statutes. Takeda Chemical Industries, Ltd., et al., v. Mylan Laboratories, Inc., et al.,
549 F.3d 1381, 1391 (Fed.Cir. 2008) (citing Chambers, 501 U.S. at 46). That
15
But if in the informed discretion of the court, . . . the Rules are [not] up to the task, the
court may safely rely on its inherent power." Sharpe, 112 Fed. Cl. at 474. Judges of the
Court of Federal Claims enjoy the same rights to police their courtrooms as any other
federal judge, regardless of the announced rules of conduct. Brooker v. U.S., 107 Fed.
Cl. 52, 56 (Cl. Ct. 2012). A court's rules do not displace its inherent power to impose
sanctions for bad-faith conduct. Sellers, et al., v. U.S., 110 Fed. Cl. 62, 67-68 (Cl. Ct.
2013) (citing Chambers, 501 U.S. at 46.); in accord Fellheimer, Eichen & Braverman,
P.C. v. Charter Technologies, Inc., 57 F.3d 1215, 1224 (3d Cir. 1995) ("advent of Rule
11 and the other statutory sanctions did not eviscerate the courts' inherent power to
sanction").
41
determination lies within the discretion of the trial judge, who is in the best position to
know how severely [a party's] misconduct has affected the litigation." Takeda Chemical
Industries, Ltd., et al., v. Mylan Laboratories, Inc., et al., 549 F.3d 1381, 1390-1391
(Fed.Cir. 2008); Heath v. Walters, 1998 U.S. App. LEXIS 18263, at 4 (7th Cir. 1998).
This inherent ability is a core part of the Court of Federal Claims need to
regulate its courtroom and the participation of DOJ attorneys who appear in every case.
Danny Sellers et al., v. United States, 110 Fed. Cl. 62, 67 (Cl. Ct. 2013) (The court has
"inherent powers enabling it to manage its cases and courtroom effectively and to
ensure obedience to its orders." Pac. Gas & Electric Co. v. United States (PG&E), 82
Fed. Cl. 474, 480 (2008); see In re Bailey, 182 F.3d 860, 864 (Fed. Cir. 1999).
The Court of Federal Claims has been on point in punishing attempted fraud
upon the court: only the inherent power could reach an entire course of conduct that
evidenced bad faith and an attempt to perpetrate a fraud on the court". Sharpe, 112
Fed. Cl. at 479; in accord, Emma C., et al., v. Eastin, et. al., 2001 U.S. Dist. Lexis
16119, 3 (N.D.Ca. 2001) (Courts also have the inherent power to impose sanctions for
abusive litigation practices in any proceeding in federal district court.) (citing Chambers
v. NASCO, Inc., 501 U.S. 32 (1991); F.J. Hanshaw Enter., Inc. v. Emerald Dev., Inc.,
244 F.3d 1128, 1136 (9th Cir. 2001); Ian Owen Sharpe et al., v. U.S., 112 Fed. Cl. 468,
480 (Cl. Ct. 2013) (plaintiffs have demonstrated "conduct which abuses the judicial
process. [.] Such conduct is the proper subject of an exercise of this court's
discretion to fashion an appropriate sanction pursuant to its inherent power.").
The exercise of the inherent power of the court to police and deter misconduct is
not merely an option but an obligation of the Court to exercise:
42
Judge Allegra would likely have tacked to the opposite of the Special
Masters deference to the Justice Departments internal evaluations
about what types of threat allegations were required to be reported.
DOJ cannot decide the validity of Higmans threat or whether to deny to Judge
Allegra the ability to test the Higmans credibility and criminality. That is the law:
No party, be it an individual or a corporation, can unilaterally
decide the evidence. Put in layperson's terms, DuPont
cheated. And it 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.
In Re: E. I. du Pont de Nemours, 918 F. Supp. at 1556. If the words attempted to are
added to the quotation, and if depositions prove that Harrington assisted Higman to
intimidate or cover up threat to Trainor, then DOJ can be substituted for DuPont in that
excoriating language.16 DOJs knowledge that Trainor testifed while sitting with
documentation of Higmans threat is particularly odious to the integrity of proceedings:
[I]f DuPont is to be believed, it caused and allowed that data
and those documents, or part of them, to sit undisclosed in a
box in the courtroom.[.] Were it not for Petitioners having
discovered the existence of that data and those documents
16
In Re: E. I. du Pont de Nemours and Co., 918 F. Supp. at 1558. A sanctions payment
to plaintiff, if ordered by the trial judge, would clearly alter or amend the Final Judgment.
The costs involved even just in this proceeding makes such a directed payment
to plaintiff, appropriate.20 Zimmerman, supra at 25. Plaintiff has acted as much on the
Courts behalf as his own in gathering evidence of DOJ misconduct, and yet, on the
brink of proving potentially stunning breaches of ethics, the Special Master may cut off
processes described in the February 23, 2015 order and December 1, 2014 Opinion.
IX.
decision, the focus is not on prejudice to plaintiff21 but on the integrity of proceedings:
In Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S.
238, 64 S. Ct. 997, 88 L. Ed. 1250, 1944 Dec. Comm'r Pat.
675 (1944), the Supreme Court explained that the inquiry
into whether a judgment should be set aside for fraud on the
court focuses not so much on whether the alleged fraud
prejudiced the opposing party but on whether the alleged
fraud harms the integrity of the judicial process. The
20
Lawyers must act with honor as officers of the court at all times.
Attorneys must act with the highest ethics and candor to the tribunal as officers of
the court: lawyers are expected to act in good faith, follow the rules and do their duty as
officers of the court seeking the truth. In Re: E. I. du Pont de Nemours and Co., 918 F.
Supp. at 1542 (citing C.A. v. Cincinnati Milacron Co., 799 F.2d 1510, 1521-23 (11th Cir.
1986).22 Justice Department attorneys in particular are held to the highest standards:
[T]he Supreme Court [] recognized that citizens have an
interest in "some minimum standard of decency, honor, and
The courts [.] must depend on their officers, the lawyers,
to keep faith with their primary duty to the court as its officers
[.] Counsel should not be allowed to "sell out" to their
clients. (citations omitted)
22
46
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24
CERTIFICATE OF SERVICE
The undersigned hereby certifies that, on August 27, 2015, a copy of the
foregoing Plaintiff Jay A. Dobyns Objection to the Special Masters Report and
Recommendation was served on counsel for Defendant electronically to Robert
Kirschman, Civil Division, Commercial Litigation Branch, United States Department of
Justice, PO Box 480, Ben Franklin Station, Washington DC 20005.
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