2005 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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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Recommended Citation

"Herring v. USA" (2005). 2005 Decisions. Paper 463.

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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

 
2

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
3

 

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
 The United States Court of Appeals for the Sixth Circuit has 1

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

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

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
6

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 legalstandard 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
7

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
8

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
9

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 laterset 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
10

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
11

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
12

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. 
13

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
 In this view that we take, we extend to Appellants the full 2

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

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
 Even if we concluded that the Air Force’s claim of privilege 3

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

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
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

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.
17

(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
18

state a claim upon which relief can be granted.

We will affirm the judgment of the District Court.