                            UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT

                                   _________________________

                                          No. 01-30442
                                     SUMMARY CALENDAR
                                   _________________________

                                     STUART H. SMITH, JR.,

                                                         Plaintiff - Appellant,

                                                  v.

                          WATERMAN STEAMSHIP CORPORATION,

                                                         Defendant -Appellee.

______________________________________________________________________________

                        Appeal from the United States District Court for the
                           Eastern District of Louisiana, New Orleans

                                (00-CV-1878-B)
______________________________________________________________________________
                                 January 3, 2002
Before REYNALDO G. GARZA, SMITH and PARKER, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

       In this appeal, we review a district court's denial of a motion to set aside a judgment for

fraud upon the court under Rule 60(b) of the Federal Rules of Civil Procedure. For the following

reasons, we affirm the decision of the district court.

                                                   I

       On October 3, 1992, Appellant Stuart H. Smith, Jr., was serving as third mate aboard the



       1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
S/S Stonewall Jackson, an oceangoing cargo vessel owned and operated by Appellee Waterman

Steamship Corporation ("Waterman") and berthed in the Port of New Orleans. On that day, the

vessel was attempting an undocking maneuver, during which Smith was assigned to the vessel's

stern and was instructed to estimate and report to the bridge the distance from the vessel to the

wharf. During the maneuver, the Stonewall Jackson made contact with the dock, and the allision

caused damage to both vessel and dock.

       Waterman reported the incident to the Coast Guard, which conducted an investigation.

Waterman also submitted to the Coast Guard a Form CG-2692 that briefly described the incident.

The Form CG-2692 indicated that all equipment aboard the vessel was in good working order at

the time of the accident, but the parties debate whether the astern servo valve was working

properly at the time of the accident.2 After its investigation, the Coast Guard concluded that

Smith failed to relay correct distance information to the bridge and that this failure was the

primary cause of the allision. On October 4, 1992, Waterman terminated Smith's employment.

       On July 16, 1993, Smith sued Waterman for wrongful discharge in the Eastern District of

Louisiana. The district court concluded that Smith was employed at will and could be discharged

with or without cause. The court further concluded that Smith was not wrongfully discharged

and granted Waterman's motion for summary judgment. Smith v. Waterman Steamship

Corporation, et al., No. CA-93-3207-I (E.D. La. Jan. 5, 1994). The Form CG-2692 was never

submitted to the court, and the court never relied upon it.

       Smith then appealed to this Court. For the purposes of his appeal, we assumed arguendo

that Smith could only be discharged for just cause but also concluded that no genuine of material


       2
           The astern servo valve can affect the vessel's movement. See Appellant Br. at 7–8.

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issue of fact existed as to whether Smith was wrongfully discharged. Accordingly, we affirmed

the decision of the district court. Smith v. Waterman Steamship Corporation, et al., No. 94-

30174 (5th Cir. Sept. 8, 1994). The Form CG-2692 was never submitted to this Court, and this

Court never relied upon it.

       In the present suit, Smith asked the district court to set aside the earlier judgment under

Rule 60(b), arguing that the Form CG-2692 constituted a "fraud upon the Court" because it

stated that all equipment aboard the vessel was in good working order at the time of the accident

and there is some debate as to whether the astern servo valve was in such order. R. at 331. The

district court concluded that there was no fraud upon the court. The court found that, because

the allegedly fraudulent Form CG-2692 was neither submitted to nor relied upon by the district

court or this Court in the prior litigation, there was no link between the information allegedly

missing from the form and the judgments entered in the earlier lawsuit. Thus, the district court

denied Smith's Rule 60(b) motion. Smith appealed.

                                                  II

       Rule 60(b) of the Federal Rules of Civil Procedure allows a court to set aside a judgment

for fraud upon the court. This Court has stated time and again that it will review a district court's

Rule 60(b) ruling solely for an abuse of discretion. Harper Macleod Solicitors v. Keaty & Keaty,

260 F.3d 389, 394 (5th Cir. 2001); In re Al Copeland Enterprises, 153 F.3d 268, 271 (5th Cir.

1998); Ergo Sicence v. Martin, 73 F.3d 595, 599 (5th Cir. 1996). Furthermore, when reviewing

the denial of a Rule 60(b) motion, this Court does not review the underlying judgment. Halicki v.

Louisiana Casino Cruises, 151 F.3d 465, 470 (5th Cir. 1998); Williams v. Chater, 87 F.3d 702,

705 (5th Cir. 1996); Schewegmann Bank & Trust Co. v. Simmons, 880 F.2d 838, 844 (5th Cir.


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1989).

         Rule 60(b) provides an extraordinary remedy because it can weaken the principle of

finality and "the desire for a judicial process that is predictable." Carter v. Fenner, 136 F.3d 1000,

1007 (5th Cir. 1998) (quoting Bailey v. Ryan Stevedoring Company, Inc., 894 F.2d 157, 160 (5th

Cir. 1990)). Thus, Rule 60(b) relief based on fraud upon the court is reserved for only "the most

egregious misconduct." Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir.

1989). Fraud upon the court is a narrow concept that should include only those types of fraud

that do, or attempt to, "defile the court itself," or frauds that are "perpetrated by officers of the

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

adjudging cases that are presented for adjudication." Kerwit Medical Products, Inc. v. N. & H.

Instruments, Inc., 616 F.2d 833, 837 (5th Cir. 1980). In First National Bank v. Lustig, 96 F.3d

1554 (5th Cir. 1996), this Court further described the kinds of misconduct that could constitute a

fraud on the court:

         To establish fraud on the court, it is necessary to show an unconscionable plan or
         scheme which is designed to improperly influence the court in its decision.
         Generally speaking, 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. 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 1573 (internal quotation marks and citations omitted). The very first test for fraud on the

court under Rule 60 is "whether the action in question prevented a party from fully and fairly

litigating its case." Id.

         Smith does not, and cannot, complain that there was a nondisclosure to the court of facts

allegedly pertinent to the matter before it. He argues that the Form CG-2692 was a fraud upon


                                                  -4-
the court in the prior litigation. As the district court noted below, the Form CG-2692 was never

submitted to either the district court or the appellate court in the prior litigation. Therefore, the

Form CG-2682 could not have been a nondiclosure to the court.

       In essence, Smith complains that there was a nondisclosure to the Coast Guard of facts

allegedly pertinent to the matter before the court. Given our decision in First National Bank,

such a nondisclosure would constitute a fraud upon the court in only the rarest of circumstances.

Even if the facts allegedly omitted from the Form CG-2692 were pertinent to the matter before

the district and appellate courts in the prior litigation, the omission did not prevent Smith from

fully and fairly litigating his case. Neither court considered the Form CG-2692. In fact, the form

had absolutely no bearing on the district court's earlier conclusion that Smith was employed at

will, a conclusion with which this Court took no issue on appeal.3

       The district court concluded that the link between the alleged nondisclosure on the Form

CG-2692 and the judgment entered in the earlier lawsuit was insufficient to establish a fraud on

the court. We find no error in the district court's reasoning. We certainly find no abuse of

discretion.




       3
         It should go without saying that a court assuming a point arguendo for the purposes of
appeal does not hold on that point. Nonetheless, in his complaint, Smith mischaracterizes this
Court's opinion in the earlier appeal as "noting that the Collective Bargaining Agreement under
which Smith was employed provided that he could only be discharged for just cause." R. at 326;
But see Smith v. Waterman Steamship Corporation, et al., No. 94-30174 (5th Cir. Sept. 8, 1994)
("For purposes of this opinion, we will assume arguendo that the collective bargaining agreement
between Smith's union and Waterman is sufficient to invoke 46 U.S.C. § 10313(c) and that Smith
could only be discharged for just cause.") (emphasis added).

                                                  -5-
                                               III

Accordingly, we AFFIRM the district court's denial of Smith's Rule 60(b) motion to set aside the

prior judgment.




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