                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                             ________________

                               No. 99-11308

                             ________________

                            Robert C. Ballew,

                                                     Plaintiff-Appellant,


                                  versus


               United States Department of Justice and
                      United States Coast Guard,

                                                    Defendants-Appellees.


_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                    Civil Docket #4:99-CV-406-Y
_________________________________________________________________



                            December 15, 2000

Before JOLLY, JONES, and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:*


           Robert C. Ballew (“Ballew”) appeals from the district

court’s grant of a motion to dismiss for failure to state a claim



     *
            Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
on his Federal Rule of Civil Procedure 60(b) independent equitable

action for relief from a final judgment.           Because Ballew did not

plead the sort of “grave miscarriage of justice” required to

sustain a Rule 60(b) independent equitable action for relief from

a final judgment, we now affirm the district court’s dismissal of

his claim.

            In 1988 Ballew filed a qui tam lawsuit under the Federal

False Claims Act against his then-employer, Aerospatiale Helicopter

Corporation (“AHC”) and the Textron Lycoming Division of AVCO

Corporation (“AVCO”).    These two defense contractors were engaged

in   the   production   and   maintenance     of   the   HH65-A   “Dolphin”

helicopter for the Coast Guard.         Ballew’s qui tam action revealed

that the engines made by AVCO for use in the AHC-manufactured

helicopter were defective.       As relator of an action brought on

behalf of the government, Ballew was entitled to receive a share of

any recovery obtained by the government. The Department of Justice

ultimately intervened in Ballew’s qui tam action and settled the

case on July 10, 1990.

            As part of the settlement, the Government agreed to give

Ballew, in his capacity as relator, a 15% share of the cash

recovery, or a total payment of $2,685,861.90.           In return for this

large cash payment, Ballew consented to the dismissal of his qui

tam lawsuit against AVCO and AHC.        The district court approved the

proposed settlement, stating that “the Settlement Agreement between


                                    2
the Parties provides fair, adequate and reasonable resolution of

this case under all the circumstances.”

             Ballew received his nearly $2.7 million payment shortly

after the July 10, 1990 settlement was reached, and the matter was

considered closed.     However in June 1999, nearly nine years later,

Ballew returned to federal court, asserting that he received a sum

far below that to which he was entitled.

             In the instant case, Ballew asserts that the Government

fraudulently     concealed    critical        elements    of    the        settlement

agreement    with   AVCO   and   AHC,       disguising    the    fact       that   the

Government     actually    received     some     $327,940,130         in    valuable

consideration.      Ballew therefore contends that he is entitled to

15% of $327,940,130, rather than the 15% of $17.9 million that he

actually received.

             Ballew arrived at this much larger settlement figure

based   on   several   documents      he    obtained     via    the    Freedom      of

Information Act between 1996 and 1998.           Ballew claims that the qui

tam settlement to which he agreed in 1990 failed to give him his

15% cut of (1) the new engine maintenance (“Power by the Hour”)

contract entered into between AVCO and the Government as part of

the settlement and (2) the settlement of certain administrative

claims between the Coast Guard and AHC, which settled several weeks

after his own underlying qui tam action.




                                        3
           The district court granted the Government’s motion to

dismiss Ballew’s Rule 60(b) independent action for failure to state

a claim.   The district court ruled that Ballew had failed to plead

the sort of “grave miscarriage of justice” required to sustain an

independent equitable action under the “Savings Clause” of Rule

60(b) and that any motion allowed under Rule 60(b) was untimely.

Ballew now appeals the dismissal of his Rule 60(b) claim.

           This Court’s review of the district court’s grant of the

Government’s motion to dismiss for failure to state a claim is de

novo. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 66

(1978); Fontana v. Barham, 707 F.2d 221, 227 (5th Cir. 1983).   The

Government has argued that we should review the district court’s

decision in this case for abuse of discretion.     The Government’s

argument is premised on the rule that dismissal of Rule 60(b)

motions seeking relief from final judgment is subject only to abuse

of discretion review.   The Government’s argument is correct as far

as it goes: Rule 60(b)(1)-(6) motions are directed to the sound

discretion of the district court.     See e.g. Behringer v. Johnson,

75 F.3d 189, 190 (5th Cir. 1996), cert. denied 516 U.S. 1182

(1996); Bertrand v. Sullivan, 976 F.2d 977, 980 (5th Cir. 1992).

However, the instant action does not concern a Rule 60(b) motion

but rather an independent action pursuant to the “Saving Clause” of

Rule 60(b).   See 11 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Proceedure § 2868 (2d ed. 1986).    An action pursuant


                                  4
to the “Saving Clause” is a free-standing claim in equity, not a

mere motion, and is thus subject to de novo review on appeal when

dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).

              The “Saving Clause” reads in relevant part that “[t]his

rule   does    not   limit   the   power   of   a   court   to   entertain   an

independent action to relieve a party from a judgment [or] order.”

Fed. R. Civ. Pro. 60(b).       This independent action sounds in equity

and is subject to the standard equitable defenses, including

laches.

              The Supreme Court has recently underscored the special

nature of the Rule 60(b) independent equitable action as a means of

relief from a judgment, concluding that the remedy is available

only where there has been “grave miscarriage of justice.”              United

States v. Beggerly, 524 U.S. 38, 46, 118 S.Ct. 1862, 1868 (1998).

The Supreme Court emphasized that the level of fraud or misconduct

necessary to sustain an independent action under the “Saving

Clause” of Rule 60(b) must be several notches of severity above

that required for a 60(b)(3) motion:

       If relief may be obtained through an independent action
       in a case such as this, where the most that may be
       charged against the government is a failure to furnish
       relevant information that would at best form the basis
       for a Rule 60(b)(3) motion, the strict 1-year time limit
       on such motions would be set at naught.      Independent
       actions must, if Rule 60(b) is to be interpreted as a
       coherent whole, be reserved for those cases of
       “injustices which, in certain instances, are deemed
       sufficiently gross to demand a departure” from rigid
       adherence to the doctrine of res judicata.



                                      5
            Beggerly, 524 U.S. at 46, 118 S.Ct. at 1867 (quoting

Hazel-Atlas Glass Co. v. Hartford- Empire Co., 322 U.S. 238, 244,

64 S.Ct 997, 1000 (1944)).1         Thus, the bar has been set high for

Ballew’s Rule 60(b) independent action: it must work a “grave

miscarriage of justice” to allow the settlement in the original qui

tam action to stand.

            In his attempt show the requisite “grave miscarriage of

justice” Ballew focuses on the failure of the government to give

him a share, in his capacity as relator, of the estimated value of

the later-settled “Power by the Hour” maintenance contract or of

the resolution of the administrative claims between AHC and the

Coast Guard.       Ballew’s brief implies that this exclusion was

motivated by malice, misrepresentations and fraudulent concealment

on the part of the Department of Justice and/or the Coast Guard;

but the qui tam award that he did receive was, at the time, the

largest-ever.      It is also undisputed that he was aware of the

government’s negotiations over the Power by the Hour contract at

the time of the settlement, and he was vigorously represented by

counsel   during    settlement    negotiations.       Put   together,    these


      1
            As Beggerly suggests, Rule 60(b)(3) would be directly applicable to
Ballew’s alleged situation, permitting relief “from a final judgment . . .
[because of] fraud . . . misrepresentation, or other misconduct of an adverse
party,” but by waiting over nine years to assert that the Government committed
fraud in entering into the underlying qui tam settlement, Ballew lost the option
of bringing a 60(b)(3) motion. Similarly, to the extent Ballew’s allegations
might have supported relief based on Rule 60(b)(1) (“mistake, inadvertence,
surprise, or excusable neglect”), or Rule 60(b)(2) (newly discovered evidence),
they are also time-barred.


                                       6
circumstances do not rise to the level of a grave miscarriage of

justice even if the government was not fully forthcoming to Ballew.

           Ballew also attempts to satisfy the grave miscarriage of

justice standard by claiming that he is the victim of fraud by the

Government, which allegedly made misrepresentations and withheld

information during the settlement negotiations in 1990.        Accepting

these allegations as true, Ballew has still not made out a claim

there has been the sort grave miscarriage of justice contemplated

by the Supreme Court.        Even prior to Beggerly it was established

that “fraud cognizable to maintain an untimely independent attack

upon a valid and final judgment has long been regarded as requiring

more than common law fraud.”      Geo. P. Reintjes Co. v. Riley Stoker

Corp., 71 F.3d 44, 48 (1st Cir. 1995).       Beggerly itself held that

the failure of the Government to “thoroughly search its records and

make full disclosure to the Court” was insufficient to sustain a

Rule 60(b) independent action. Beggerly, 524 U.S. at 47, 118 S.Ct.

1868.

           Ballew’s only other argument that there has been a grave

injustice is bound up with his assertion that “fraud on the court”

was   committed   by   the    Government.   Fraud   on   the   court,    if

established, constitutes a grave miscarriage of justice and may

serve as the foundation of a Rule 60(b) independent action. Rozier

v. Ford Motor Company, 573 F.2d 1332, 1338 (5th Cir. 1978).             But

the standard for fraud on the court is demanding: “Generally

speaking, only the most egregious misconduct, such as bribery of a

                                     7
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.” Id. at 1338 (citing to Hazel-Atlas Glass Co. v.

Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997 (1944)).                   Less

egregious misconduct, such as nondisclosure to the court of facts

allegedly pertinent to the matter before it, will not ordinarily

rise to the level of fraud on the court.              Id. at 1338 (citing to

Kupferman v. Consolidated Research & Mfg. Co., 459 F.2d 1072 (2nd

Cir. 1972)).   Where the wrong is only between the parties and there

has been no direct assault on the integrity of the judicial process

itself, the federal courts have refused to invoke the doctrine of

fraud on the court.     See 11 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 2870 at 416 (2d. ed. 1987).

Stated another way, fraud on the court requires a “scheme by which

the   integrity   of   the   judicial       process   has   been   fraudulently

subverted by a deliberately planned scheme in a manner involving

‘far more than an injury to a single litigant.’” Addington v.

Farmer’s Elevator Mutual Insurance, 650 F.2d 663, 668 (5th Cir.

1981) (quoting Hazel-Atlas Glass, 322 U.S. 238, 245-46, 64 S.Ct.

997, 1002 (1944)).

           Ballew asserts that the fraud on the court in the instant

case occurred when “the DOJ attorneys conspired with the USCG (and

the defendants in the underlying Qui Tam) to mislead the court as

to the true nature, extent and value of the underlying Qui Tam

settlement proceeds.”        Taking all of these assertions as true,

                                        8
                                                                    DRAFT
                                                    April 29, 2004 (4:39am)

Ballew has only established that the Government committed fraud

against him as an individual.   Ballew has shown injury to himself

in his capacity as a “single litigant” but this alone is not

sufficient to constitute fraud on the court.   Ballew has failed to

allege an attack on the integrity of the judicial process itself.

By failing to plead fraud on the court, Ballew has thereby failed

to assert that a grave miscarriage of justice exists.

           Ballew has failed to plead any grave miscarriage of

justice.   In the absence of a grave miscarriage of justice, a Rule

60(b) independent action can not be sustained.        The district

court’s dismissal of Ballew’s action for failure to state a claim

is therefore AFFIRMED.




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