                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-22-2005

Herring v. USA
Precedential or Non-Precedential: Precedential

Docket No. 04-4270




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                                PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 04-4270


  PATRICIA J. HERRING, INDIVIDUALLY; JUDITH
PALYA LOETHER, INDIVIDUALLY AND AS A LIVING
HEIR OF ELIZABETH PALYA (DECEASED); WILLIAM
 PALYA, INDIVIDUALLY AND AS A LIVING HEIR OF
 ELIZABETH PALYA (DECEASED); ROBERT PALYA,
    INDIVIDUALLY AND AS A LIVING HEIR OF
ELIZABETH PALYA (DECEASED); SUSAN BRAUNER,
INDIVIDUALLY AND AS A LIVING HEIR OF PHYLLIS
  BRAUNER (DECEASED); CATHERINE BRAUNER,
INDIVIDUALLY AND AS A LIVING HEIR OF PHYLLIS
             BRAUNER (DECEASED),
                   Appellants

                           v.

          UNITED STATES OF AMERICA


      Appeal from the United States District Court
         for the Eastern District of Pennsylvania
             (District Court No. 03-CV-5500)
   District Court Judge: Honorable Legrome D. Davis
                  Argued: July 15, 2005

  Before: ALITO, VAN ANTWERPEN and ALDISERT,
                   Circuit Judges

               (Filed: September 22, 2005)


Wilson M. Brown, III (Argued)
Lori J. Rapuano
Angie Halim
Drinker Biddle & Reath, LLP
One Logan Square
18th and Cherry Streets
Philadelphia, PA 19103

      Attorneys for Appellants

Peter D. Keisler
       Assistant Attorney General
Patrick L. Meehan
       United States Attorney
Barbara L. Herwig
August E. Flentje (Argued)
       Attorneys
Appellate Staff, Civil Division
Department of Justice
950 Pennsylvania Avenue, NW, Room 7242
Washington, D.C. 20530-0001

      Attorneys for Appellee

                               2
                  OPINION OF THE COURT



ALDISERT, Circuit Judge.

        In this case we decide whether the Government’s
assertion of military secrets privilege for an accident report
discussing the October 6, 1948 crash of a B-29 bomber which
killed three civilian engineers along with six military personnel,
at Waycross, Georgia, was fraud upon the court.

                                I.

        Actions for fraud upon the court are so rare that this
Court has not previously had the occasion to articulate a legal
definition of the concept. The concept of fraud upon the court
challenges the very principle upon which our judicial system is
based: the finality of a judgment. The presumption against the
reopening of a case that has gone through the appellate process
all the way to the United States Supreme Court and reached final
judgment must be not just a high hurdle to climb but a steep
cliff-face to scale.

        In order to meet the necessarily demanding standard for
proof of fraud upon the court we conclude that there must be:
(1) an intentional fraud; (2) by an officer of the court; (3) which




                                3
is directed at the court itself; and (4) in fact deceives the court.1



  1
    The United States Court of Appeals for the Sixth Circuit has
set forth five elements of fraud upon the court which consist 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).
        Although other United States Courts of Appeals have not
articulated express elements of fraud upon the court as the Sixth
Circuit did, the doctrine has been characterized “as a scheme to
interfere with the judicial machinery performing the task of
impartial adjudication, as by preventing the opposing party from
fairly presenting his case or defense.” In re Coordinated Pretrial
Proceedings in Antibiotic Antitrust Actions, 538 F.2d 180, 195
(8th Cir. 1976) (citations omitted); see also Rozier v. Ford
Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978) (holding “only
the most egregious misconduct, such as bribery of a judge or
members of a jury, or the fabrication of evidence by a party in
which an attorney is implicated, will constitute a fraud on the
court”). Additionally, fraud upon the court differs from fraud on
an adverse party in that it “is limited to fraud which seriously
affects the integrity of the normal process of adjudication.”
Gleason v. Jandrucko, 860 F.2d 556, 559 (2d Cir. 1998).
        Other United States Courts of Appeals expressly require
that fraud upon the court must involve an officer of the court.
See Geo. P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44, 48

                                 4
We further conclude that a determination of fraud on the court
may be justified only by “the most egregious misconduct
directed to the court itself,” and that it “must be supported by
clear, unequivocal and convincing evidence.” In re Coordinated
Pretrial Proceedings in Antibiotic Antitrust Actions, 538 F.2d
180, 195 (8th Cir. 1976) (citations omitted). The claim of
privilege by the United States Air Force in this case can
reasonably be interpreted to include within its scope information
about the workings of the B-29, and therefore does not meet the
demanding standard for fraud upon the court.

                                II.

       Early in 2000, Judith Palya Loether learned through
internet research that the government had declassified Air Force
documents regarding military aircraft accidents. She ordered
documents related to the crash of a B-29 bomber at Waycross,
Georgia, on October 6, 1948. Her father, Albert Palya, along



(1st Cir. 1995); Demjanjuk, 10 F.3d at 348. The Ninth Circuit
noted that “one species of fraud upon the court occurs when an
‘officer of the court’ perpetrates fraud affecting the ability of the
court or jury to impartially judge a case.” Pumphrey v.
Thompson Tool Co., 62 F.3d 1128, 1130 (9th Cir. 1995); see
also Weese v. Schukman, 98 F.3d 542, 553 (10th Cir. 1996)
(noting that “fraud on 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”)
(citation omitted); Kerwit Med. Prods., Inc. v. N. & H.
Instruments, Inc., 616 F.2d 833, 837 (11th Cir. 1980) (same).

                                 5
with two other civilian engineers, had been killed in that crash.
Her mother and the other two widows had sued the Government
under the Tort Claims Act, but had not been able to gain access
to the, now declassified, Air Force documents because of the
Government’s claim that the documents were protected by
privilege. The case was heard by the Supreme Court in United
States v. Reynolds, 345 U.S. 1 (1953), which explained the legal
framework we must use in analyzing claims in which the
Government asserts a privilege against revealing military
secrets. Id. at 7-12. The Supreme Court reversed the decision of
this Court and remanded the case to District Court for
determination of whether the facts of that particular case,
applied to the legal standard articulated, merited a determination
that the privilege sought by the Government should be granted.
Id. at 12. Before the District Court was able to consider the case
on remand, the parties settled for 75% of the District Court’s
original verdict and the case was then dismissed with prejudice.

       The Supreme Court explained the facts and procedural
history leading up to its determination of the case as follows:

       These suits under the Tort Claims Act arise from
       the death of three civilians in the crash of a B-29
       aircraft at Waycross, Georgia, on October 6,
       1948. Because an important question of the
       Government’s privilege to resist discovery is
       involved, we granted certiorari.

       The aircraft had taken flight for the purpose of
       testing secret electronic equipment, with four
       civilian observers aboard. While aloft, fire broke

                            6
out in one of the bomber’s engines. Six of the
nine crew members, and three of the four civilian
observers were killed in the crash.

The widows of the three deceased civilian
observers brought consolidated suits against the
United States. In the pretrial stages the plaintiffs
moved, under Rule 34 of the Federal Rules of
Civil Procedure, for production of the Air Force’s
official accident investigation report and the
statements of the three surviving crew members,
taken in connection with the official investigation.
The Government moved to quash the motion,
claiming that these matters were privileged
against disclosure pursuant to Air Force
regulations promulgated under R.S. § 161. The
District Judge sustained plaintiffs’ motion,
holding that good cause for production had been
shown. The claim of privilege under R.S. § 161
was rejected on the premise that the Tort Claims
Act, in making the Government liable “in the
same manner” as a private individual had waived
any privilege based upon executive control over
governmental documents.

Shortly after this decision, the District Court
received a letter from the Secretary of the Air
Force, stating that “it has been determined that it
would not be in the public interest to furnish this
report. . . .” The court allowed a rehearing on its
earlier order, and at the rehearing the Secretary of

                     7
       the Air Force filed a formal “Claim of Privilege.”
       This document repeated the prior claim based
       generally on R.S. § 161, and then stated that the
       Government further objected to production of the
       documents “for the reason that the aircraft in
       question, together with the personnel on board,
       were engaged in a highly secret mission of the Air
       Force.” An affidavit of the Judge Advocate
       General, United States Air Force, was also filed
       with the court, which asserted that the demanded
       material could not be furnished “without seriously
       hampering national security, flying safety and the
       development of highly technical and secret
       military equipment.” The same affidavit offered
       to produce the three surviving crew members,
       without cost, for examination by the plaintiffs.
       The witnesses would be allowed to refresh their
       memories from any statement made by them to
       the Air Force, and authorized to testify as to all
       matters except those of a “classified nature.”

        The District Court ordered the Government to produce
the documents in order that the court might determine whether
they contained privileged matter. The Government declined, so
the court entered an order, under Rule 37(b)(2)(i), that the facts
on the issue of negligence would be taken as established in
plaintiffs’ favor. After a hearing to determine damages, final
judgment was entered for the plaintiffs. The Court of Appeals
affirmed, both as to the showing of good cause for production
of the documents, and as to the ultimate disposition of the case
as a consequence of the Government’s refusal to produce the

                                8
documents.

Id. at 2-5 (citations and internal quotations omitted).

       In the present action, Palya Loether is joined by Patricia
Herring, William Palya, Robert Palya, Susan Brauner and
Catherine Brauner. Patricia Herring is one of the widows who
was a party in the original action. The others are heirs of the two
other, now deceased, widows in the original action. The
substance of their complaint is that the purportedly top secret
documents for which the Government claimed a military secrets
privilege did not actually reveal anything of a sensitive nature.
They claim, therefore, that Government officers fraudulently
misrepresented the nature of the report in a way that caused the
widows to settle their case for less than its full value.

        Appellants first pursued this current claim in the Supreme
Court by a motion seeking leave to file a petition for a writ of
error coram nobis. The Court denied this motion on June 23,
2003. In re Herring, 539 U.S. 940 (2003). Then, on October 1,
2003, Appellants filed this action in the District Court for the
Eastern District of Pennsylvania, preserved by the savings
clause of Rule 60(b) of the Federal Rules of Civil Procedure, to
set aside the 50-year-old settlement agreement on the grounds
that the settlement was procured by fraud upon the court. The
Appellants sought the difference between the settlement amount
and judgment originally entered by the District Court (which
was later set aside by the Supreme Court). The Government then
filed a motion to dismiss for failure to state a claim under Rule
12(b)(6). The District Court granted the Government’s 12(b)(6)
motion. It determined that there was no fraud because the

                                9
documents, read in their historical context, could have revealed
secret information about the equipment being tested on the plane
and, on a broader reading, the claim of privilege referred to both
the mission and the workings of the B-29. We affirm.

                               III.

       The District Court had jurisdiction supplemental to its
exercise of jurisdiction over the original claim in Reynolds v.
United States, No. 10142 (E.D. Pa.) (filed September 27, 1949),
and Brauner v. United States, No. 9793 (E.D. Pa.) (filed June
21, 1949). See 28 U.S.C. § 1367 (2000). We have jurisdiction
pursuant to 28 U.S.C. § 1291.

                               IV.

       The Government urges us to apply an abuse of discretion
standard of review to our review of the District Court’s grant of
its Rule 12(b)(6) motion and provides several arguments in
favor of departure from the normally applicable standard.

        Initially, we must be clear that we are not here reviewing
a Rule 60(b) motion. The provision of Rule 60(b) commonly
known as the “savings clause” states: “This rule does not limit
the power of a court to entertain an independent action to
relieve a party from a judgment, order, or proceeding, or to grant
relief to a defendant not actually personally notified as provided
in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud
upon the court.” Rule 60(b), Federal Rules of Civil Procedure
(emphasis added). It follows that an independent action alleging
fraud upon the court is completely distinct from a motion under

                               10
Rule 60(b). See Geo. P. Reintjes Co., 71 F.3d at 48.

        The Government contends that because Appellants seek
an equitable remedy ancillary to the prior suit of relief from a
prior judgment of the District Court we should treat this action
as if it were a review of denial of a Rule 60(b) motion and
therefore review for abuse of discretion. We will not treat as a
Rule 60(b) motion something that is explicitly preserved without
being included by the text of Rule 60(b).

         We are similarly unpersuaded by the Government’s
argument that because Rule 60(b) allows relief more broad than
an independent action for fraud upon the court, and
determinations based on Rule 60(b) are reviewed only for abuse
of discretion, see Pridgen v. Shannon, 380 F.3d 721, 725 (3d
Cir. 2004), an independent action for fraud upon the court
should be reviewed at least as deferentially. Fundamentally, this
argument confuses standard of review with burden of proof. We
are quite capable of taking full account of the narrow criteria for
relief present in an independent action for fraud upon the court
without altering the Federal Rules of Civil Procedure. Under the
normal de novo review that applies to a district court’s grant of
a Rule 12(b)(6) motion to dismiss for failure to state a claim, we
can determine whether the Appellants have alleged facts which,
if true, provide a basis for relief under the very demanding legal
standard for fraud upon the court.

       Finally, the Government cites United States v. Buck, 281
F.3d 1336, 1342-1343 (10th Cir. 2002), for the proposition that
independent actions to reopen a judgment based on fraud upon
the court are reviewed for abuse of discretion. We note initially

                                11
that Buck is not binding on this Court. Even if it were, it does
not support the Government’s proposition because it reviewed
a case in a much different procedural posture than the one at bar.
In Buck, the court converted a motion brought under Rule
60(b)(6) alleging fraud upon the court into an independent
action and then reviewed for abuse of discretion. Instead, we are
faced with the simple review of a district court’s grant of a Rule
12(b)(6) motion to dismiss for failure to state a claim to which
de novo review clearly applies. See In re Adams Golf, Inc. Sec.
Litig., 381 F.3d 267, 273 (3d Cir. 2004).

                                V.

        As noted above, we will employ a demanding standard
for independent actions alleging fraud upon the court requiring:
(1) an intentional fraud; (2) by an officer of the court; (3) which
is directed at the court itself; and (4) that in fact deceives the
court. We agree with the Court of Appeals of the Eighth Circuit
that the fraud on the court must constitute “egregious
misconduct . . . such as bribery of a judge or jury or fabrication
of evidence by counsel. ” In re Coordinated Pretrial Proceedings
in Antibiotic Antitrust Actions, 538 F.2d at 195 (citations
omitted). We must decide whether the United States Air Force’s
assertion of military secrets privilege over the accident report
describing the cause of the B-29’s crash at Waycross, Georgia,
was fraud upon the court. In order to do this we look carefully
at two documents central to the original litigation: the formal
affidavit and claim of privilege filed by then-Secretary of the
Air Force, Thomas K. Finletter and an affidavit of then-Judge
Advocate General of the Air Force, Reginald Harmon.


                                12
       Before engaging in a detailed inquiry into the substance
contained in these documents it is important to note the form
and authorship of the documents. Both are formal documents
making assertions to the court under oath authored by lawyers
who were participating in the litigation though not directly
representing the United States.

        Authorship is important because, as noted above, we
agree with the courts analyzing fraud upon the court which have
required the fraud to be perpetrated by an “officer of the court.”
See Geo. P. Reintjes, 71 F.3d at 49; Demjanjuk, 10 F.3d at 348;
Lockwood v. Bowles, 46 F.R.D. 625, 632 (D.C. Cir. 1969).
These cases have noted, and we agree, that perjury by a witness
is not enough to constitute fraud upon the court. See e.g., Geo.
P. Reintjes Co., 71 F.3d at 49 (“The possibility of perjury, even
concerted, is a common hazard of the adversary process with
which litigants are equipped to deal through discovery and
cross-examination, and, where warranted, motion for relief from
judgment to the presiding court. Were mere perjury sufficient to
override the considerable value of finality after the statutory
time period for motions on account of fraud has expired, it
would upend [Rule 60’s] careful balance.”) (citations omitted).
         The Government seeks to define officer of the court
narrowly to exclude Secretary Finletter and Judge Advocate
Harmon because, though lawyers, they did not represent the
United States in the litigation sought to be reopened. Although
it is true that Finletter and Harmon did not represent the United
States in the litigation, they did represent the United States Air
Force’s claim of privilege over a document central to that
litigation. They were attorneys making a formal claim of
privilege on behalf of the Government. We agree with the

                               13
District Court’s conclusion that the Supreme Court depended
upon Finletter and Harmon’s “experience, expertise and
truthfulness” in its decision to reverse and remand. Herring v.
United States, No. Civ. A.03-CV-5500-LDD, 2004 WL
2040272, *6 n.3 (E.D. Pa. Sept. 10, 2004). Given these unique
facts, we find it inappropriate to decide the case on the basis that
Secretary Finletter and Judge Advocate General Harmon were
not officers of the court.2
        The stature of the documents in which the allegedly
fraudulent representations were made is also important. The
representations were made in an affidavit of Judge Advocate
General Harmon and an affidavit and formal claim of privilege
of Secretary Finletter both made under oath. To allege that false
statements were made in these documents is to allege perjury; a
particularly serious type of perjury because of the high degree of
faith the Court placed in the truth of Finletter and Harmon’s
representations. In a perjury case, the plaintiff must prove that
the allegedly perjurious statement is not subject to a literal,
truthful interpretation. United States v. Tonelli, 577 F.2d 194,
198 (3d Cir. 1978). As explained above, proof of perjury is not
enough to establish fraud upon the court. See e.g., Geo. P.
Reintjes Co., 71 F.3d at 49. In this case, however, an accusation
of perjury forms the basis of the fraud upon the court claim. In
such a case, proof of perjury, though not sufficient to prove


   2
    In this view that we take, we extend to Appellants the full
reach of case law that prescribed required elements of “fraud
upon the court.” Were we to proceed otherwise, the following
discussion would not have been necessary to affirm the
judgment of the District Court.

                                14
fraud upon the court, becomes a necessary element which must
be met before going on to meet the additional rigors of proving
fraud upon the court.
       Moving to our examination of the substance of the two
documents relied on by the Appellants, it is apparent that we
must determine whether they are susceptible to a truthful
interpretation. More specifically, can they be reasonably read to
include within their scope an assertion of privilege over the
workings of the B-29? If they can, the Appellants’ assertion that
the Air Force claim of military secrets privilege misrepresented
the nature of the information contained in the accident report
over which the privilege was asserted falls apart.3


  3
    Even if we concluded that the Air Force’s claim of privilege
could not be read to include concern about revealing the
workings of the B-29, we would be obligated to consider
whether certain information contained in the accident report
actually revealed sensitive information about the mission and the
electronic equipment involved. The accident report revealed, for
example, that the project was being carried out by “the 3150th
Electronics Squadron,” that the mission required an “aircraft
capable of dropping bombs” and that the mission required an
airplane capable of “operating at altitudes of 20,000 feet and
above.” (Report of Special Investigation of Aircraft Accident
Involving TB-29-100BS No. 45-21866.) Our conclusion that
information about the workings of the B-29 was included within
the claim of privilege makes it unnecessary to engage in this
analysis. If such an analysis were necessary, it would require a
certain amount of deference to the Government’s position
because of the near impossibility of determining with any level

                               15
      We conclude that the statements of Finletter and Harmon
can be reasonably read to assert privilege over technical
information about the B-29. The formal claim of privilege made
by Secretary Finletter states:
       The defendant further objects to the production of
       this report, together with the statements of
       witnesses, for the reason that the aircraft in
       question, together with the personnel on board,
       were engaged in a confidential mission of the Air
       Force. The airplane likewise carried confidential
       equipment on board and any disclosure of its
       mission or information concerning its operation
       or performance would be prejudicial to this
       department and would not be in the public
       interest.



of certainty what seemingly insignificant pieces of information
would have been of keen interest to a Soviet spy fifty years ago.
See e.g., Knight v. C.I.A., 872 F.2d 660, 663 (5th Cir. 1989)
(“[E]ven the most apparently innocuous [information] can yield
valuable intelligence.”); C.I.A. v. Sims, 471 U.S. 159, 178
(1985) (“Foreign intelligence services have both the capacity to
gather and analyze any information that is in the public domain
and the substantial expertise in deducing the identities of
intelligence sources from seemingly unimportant details. In this
context, the very nature of the intelligence apparatus of any
country is to try to find out the concerns of others; bits and
pieces of data ‘may aid in piecing together bits of other
information even when the individual piece is not of obvious
importance in itself.’” (citation omitted).

                           16
(Claim of Privilege by the Secretary of the Air Force
(emphasis added).)
        Appellants and the Government disagree on whether the
pronoun “its” refers only to the electronic equipment on board
or the B-29 airplane itself. While both readings are conceivable,
the Government’s is more logical. It is more natural to refer to
an airplane’s mission than to refer to the confidential
equipment’s mission. At the very least, the statement is readily
susceptible to the reading preferred by the Government.
        Appellants’ contention about the meaning of “its” in the
claim of privilege is also completely undercut by the statement
in their original Supreme Court brief that “the Secretary for Air
[sic] in his claim of privilege states (R. 22) that ‘any disclosure
of its (the airplane’s) mission or information concerning its
operation or performance would be prejudicial’” and that it was
“obvious that the Air Force considers that all details concerning
the operation of the airplane are ‘classified.’” (Brief for
Respondents submitted to the Supreme Court at 35 n.4
(emphasis added) (parenthetical alteration in the original).)
       Nothing in Judge Advocate General Harmon’s affidavit
contradicts the Government’s contention that the claim of
privilege referred to the B-29 itself rather than solely the secret
mission and equipment.
                            *****
       Because there is an obviously reasonable truthful
interpretation of the statements made by the Air Force,
Appellants are unable to make out a claim for the perjury which,
as explained above, forms the basis for their fraud upon the
court claim. We, therefore, conclude that Appellants failed to


                                17
state a claim upon which relief can be granted.
       We will affirm the judgment of the District Court.




                              18
