            Case: 13-12502   Date Filed: 03/18/2014   Page: 1 of 7


                                                          [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                             No. 13-12502
                         Non-Argument Calendar
                       ________________________

     D.C. Docket Nos. 6:09-cv-01406-MSS-GJK, 6:09-cv-01921-MSS-GJK



6:09-cv-01406

DARRALYN C. COUNCIL,

                                                             Plaintiff-Appellant,

                                   versus

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFGE) UNION, et al.,

                                                                     Defendants,

SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
UNITED STATES OF AMERICA,

                                                         Defendants-Appellees.

______________________________________________________
6:09-cv-01921

DARRALYN C. COUNCIL,

                                                             Plaintiff-Appellant,
           Case: 13-12502   Date Filed: 03/18/2014   Page: 2 of 7


                                  versus

SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,

                                                          Defendant-Appellee,

TIMOTHY LIEZERT, et al.,

                                                                    Defendants.

______________________________________________________
6:10-cv-00931

DARRALYN C. COUNCIL,

                                                            Plaintiff-Appellant,

                                  versus

UNITED STATES OF AMERICA
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,

                                                        Defendants-Appellees.

_______________________________________________________
6:10-cv-967

DARRALYN C. COUNCIL,

                                                            Plaintiff-Appellant,

                                  versus

SECRETARY DEPARTMENT OF VETERANS AFFAIRS,
UNITED STATES OF AMERICA,

                                                        Defendants-Appellees.




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                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (March 18, 2014)

Before TJOFLAT, JORDAN, and FAY, Circuit Judges.

PER CURIAM:

      Darralyn C. Council, proceeding pro se, appeals the denial of his Federal

Rule of Civil Procedure 60 motions for relief from the final judgment on his

discrimination and retaliation claims under Title VII, 42 U.S.C. § 2000e-16(a)

against his former employer, the U.S. Department of Veterans Affairs (“VA”). We

affirm.

                               I. BACKGROUND

      In the underlying proceedings, Council raised a variety of employment

discrimination and retaliation claims and challenged adverse personnel actions he

had experienced while employed at VA medical centers in Houston, Texas, and

Orlando, Florida. The district judge granted summary judgment on the majority of

Council’s claims but allowed several claims to proceed to trial. After the jury

found in favor of the VA, the district judge entered judgment on May 26, 2011.

Council subsequently appealed; we affirmed. Council v. Am. Fed’n of Gov’t




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Emps. (AFGE) Union, et al., 477 F. App’x 648, 649-50 (11th Cir. 2012) (per

curiam) (unpublished).

      In April 2013, Council filed two Rule 60 motions for relief from the

judgment of the district judge. He argued two VA employees, Erich Schwartze

and Angela Bishop, had committed fraud on the court by perjuring themselves at

trial regarding the reasons for his demotion and by fabricating evidence. The

district judge construed those motions as motions for relief pursuant to Rule

60(b)(3), which she denied as untimely, because Council had failed to file them

within one year as prescribed by Rule 60(c)(1). On appeal, Council argues VA

personnel committed fraud on the court during the underlying proceedings, which

warrants setting aside the judgment. He also argues the merits of his underlying

employment-discrimination claims.

                               II. DISCUSSION

      We review the denial of motions brought under Rules 60(b)(3) and (d)(3) for

abuse of discretion. Cox Nuclear Pharm., Inc. v. CTI, Inc., 478 F.3d 1303, 1314

(11th Cir. 2007). Rule 60(b)(3) provides relief from a final judgment or order for

fraud, misrepresentation, or misconduct by an opposing party. Fed. R. Civ. P.

60(b)(3). Motions under Rule 60(b)(3) for fraudulent conduct must be brought

within one year of the relevant judgment. Fed. R. Civ. P. 60(c)(1). Rule 60,

however, does not limit the judge’s power to set aside a judgment for “fraud on the


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court”; therefore, a party may move to set aside a judgment for fraud on the court

at any time. Fed. R. Civ. P. 60(d)(3); see Travelers Indem. Co. v. Gore, 761 F.2d

1549, 1551 (11th Cir. 1985) (per curiam) (noting an independent action for fraud

on the court does not contain a rigid time limitation). Where relief from a

judgment is sought for fraud on the court, the movant must establish by clear and

convincing evidence the adverse party obtained the verdict through fraud. Cox,

478 F.3d at 1314. “Conclusory averments of the existence of fraud made on

information and belief and unaccompanied by a statement of clear and convincing

probative facts which support such belief do not serve to raise the issue of the

existence of fraud.” Booker v. Dugger, 825 F.2d 281, 283-84 (11th Cir. 1987)

(citations, internal quotations marks, and alterations omitted).

      Fraud on the court constitutes “only that species of fraud which does or

attempts to, defile the court itself, or is a fraud perpetrated by officers of the court

so that the judicial machinery cannot perform in the usual manner its impartial task

of adjudging cases.” Travelers Indem. Co., 761 F.2d at 1551. Perjury and

fabricated evidence do not constitute fraud upon the court, because they “are evils

that can and should be exposed at trial,” and “[f]raud on the court is therefore

limited to the more egregious forms of subversion of the legal process, . . . those

we cannot necessarily expect to be exposed by the normal adversary process.” Id.

at 1552 (citation omitted).


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      Even if Council brought his motions for relief under Rule 60(b)(3), the

district judge did not abuse her discretion by denying the motions as untimely. The

judge entered final judgment in Council’s employment discrimination case on May

26, 2011, but Council did not file his motions for relief until almost two years later,

in April 2013. See Fed. R. Civ. P. 60(c) (providing a motion under Rule 60(b)(3)

must be made within one year after entry of the judgment).

      Even if we construe Council’s motions as filed under Rule 60(d)(3), which

carries no time limitation, he is not entitled to relief. Council has not established

by clear and convincing evidence that the VA obtained its favorable verdict

through fraud. See Cox, 478 F.3d at 1314. Without providing supporting

probative facts, Council makes conclusory averments regarding the existence of

fraud by contending VA employees Schwartze and Bishop committed perjury or

fabricated evidence. See Booker, 825 F.2d at 283-84. In addition, perjury and

fabricated evidence do not constitute fraud on the court, because they could have

been exposed at trial and are not considered to be “the more egregious forms of

subversion of the legal process.” Travelers Indem. Co., 761 F.2d at 1551-52.

      To the extent Council is attempting to relitigate the merits of his underlying

employment-discrimination claims, his arguments are barred by the law-of-the-

case doctrine. Ash v. Tyson Foods, Inc., 664 F.3d 883, 891 (11th Cir. 2011)

(recognizing that, under the law-of-the-case doctrine, we are bound by findings of


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fact and conclusions of law that we made in an earlier appeal of the same case).

Accordingly, we affirm the district judge’s denial of Council’s motions for relief

from the judgment.

      AFFIRMED.




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