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Case 1:08-cv-00700-PEC Document 447 Filed 08/27/15 Page 1 of 62

BAIRD, WILLIAMS & GREER, L.L.P.


6225 NORTH 24TH STREET, SUITE 125
PHOENIX, ARIZONA 85016
TELEPHONE (602) 256-9400
FACSIMILE (602) 271-9308

James B. Reed (AZ Bar No. 014015)


Attorneys for Plaintiff Jay Anthony Dobyns
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
JAY ANTHONY DOBYNS,
CASE NO. 08-700C
Plaintiff,
vs.
(Chief Judge Patricia Campbell-Smith)
THE UNITED STATES,
Defendant.

PLAINTIFF JAY ANTHONY DOBYNS


RESPONSE TO THE SPECIAL MASTERS
REPORT AND RECOMMENDATION DATED JULY 23, 2015

Case 1:08-cv-00700-PEC Document 447 Filed 08/27/15 Page 2 of 62

TABLE OF CONTENTS
Page

TABLE OF CONTENTS....i
TABLE OF AUTHORITIES...v
I.
.

Summary of argument..1
A. The Standard of Review of the Special Master Reports findings
of fact and conclusions of law is de novo1

B. The Court should entirely reject the Special Master Report for
any of the several independent and sufficient reasons set
forth herein...........................................................................................2
C. The Special Master Report was certain to result in factual and
legal error when the Special Master refused to consider instances
of misconduct alleged in plaintiffs November 19, 2014 Rule 60
Motion and in plaintiffs Rule 60 opening memorandum...3
D. The Special Master Report contains the following factual and
legal error...4
E. The Special Master had no power to overrule Judge Allegras orders....10
ARGUMENT
II.

The Special Master improperly disregarded Judge Allegras rulings


and the remand of the Federal Circuit as to the scope, purpose
and discovery guidelines for this Rule 60 proceeding.
A.

It is the law of the case that a Rule 60 proceeding must occur,


unfettered by the Special Masters disagreement prior rulings
as to the scope of proceedings, with discovery and advocacy
opportunities to prove that fraud on the court, misrepresentation
or misconduct occurred.14

B.

The specific language of Judge Allegras prior rulings


ordered that this matter proceed through depositions,
discovery and final briefing16

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TABLE OF CONTENTS, Contd


Page
C.

The Special Master Report contradicted his order for eight


depositions without controverting its reasoning.

i.

The Special Master ordered depositions based on


need and the stipulation of plaintiff and defendant to
conduct depositions..17

ii.

The Special Master conceded in prior opinions


that the unique nature of this Rule 60 inquiry requires
investigation and discovery..19

III.

The extremely simple nature of the August 28, 2014 Final Judgment
demonstrates why a determination of the trial court to sanction DOJ
attorneys would alter or amend the Final Judgment under Rule 60......21

IV.

Plaintiffs RCFC 56(d) factual declarations are sufficient to prevent


summary termination of this Rule 60 proceeding.22

V.

The evidence produced to date supports both the validity of Rule 60(b)(3)
theories of DOJ attorney misconduct and the continuation of discovery.

VI.

A.

Plaintiffs prior memoranda demonstrate clear misconduct and/or


misrepresentation and fraud by Civil Division in this matter....24

B.

The evidence produced to date supports both the existence of


a conspiracy to withhold threat information and plaintiffs need
to take depositions on that topic..25

The Court should allow plaintiff to take necessary depositions.


A.

The conduct of depositions is required before Rule 60(b)(3)


discovery can be considered complete and summary termination,
appropriate.
i.

The Special Master already ordered, on the parties


stipulation, that plaintiff has the right to take depositions.31

ii.

Summary termination of Rule 60(b)(3) proceedings is


facially improper where plaintiff has not had the opportunity
to take any witness depositions whatsoever..32

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TABLE OF CONTENTS, Contd


Page

VII.

VIII.

iii.

Plaintiff requires depositions to prove attorney fraud on the


court, or misconduct or misrepresentation under Rule 60.33

iv.

Attorney depositions are appropriate under these


circumstances...34

B.

Any doubts should be resolved in favor of permitting


plaintiff to take the previously-ordered depositions.....34

C.

In the alternative to depositions, an evidentiary hearing to


determine fraud upon the court, misrepresentation or other
Rule 60(b)(3) misconduct is the only appropriate option35

With respect to the Courts review of evidence, plaintiff should receive


all favorable inferences from the evidence produced to date before
summary termination of these Rule 60(b)(3) proceedings can occur.
A.

Rule 56 provides guidance in construing all evidence in


favor of plaintiff, given plaintiffs resemblance to a party
responding to a summary judgment motion...36

B.

Similarly, federal common law of Rule 56 dissuades the


Court from weighing evidence to determine whether
to summarily terminate this Rule 60(b)(3) proceeding.37

The Courts assessment of sanctions based on Rule 60(b)(3) fraud,


misrepresentation or other misconduct by DOJ attorneys would alter
or amend the August 28, 2014 Final Judgment and thereby satisfy
even the Special Masters limited definition of fraud.
A.

The imposition of sanctions is an appropriate response to


defense counsels misconduct, if plaintiffs allegations are proven.
i.

The Court can vacate the Final Judgment and issue


sanctions against the Justice Department for alleged
fraud on the court, misrepresentation or other misconduct.....38

ii.

Rule 60(b)(3) findings of misrepresentations or misconduct


also permit the Court to issue sanctions.40

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TABLE OF CONTENTS, Contd


Page
iii.

B.

IX.

Judge Allegra would likely have tacked to the opposite


of the Special Masters deference to the Justice
Departments internal evaluations about what types of
threat allegations were required to be reported...42

Court-imposed sanctions payments can be directed to


the plaintiff.43

The species of judicially-intrinsic fraud known as fraud on the court


does not require proof of prejudice to plaintiff or proof of an altered trial
outcome in order to satisfy Rule 60(b)(3).
A.

Mere compromise of the integrity of judicial proceedings


due to attorney or party misconduct is sufficient to constitute
fraud on the court.....45

B.

An attorneys violation of his code of conduct is a fraud


upon the court.

C.

i.

Lawyers must act with honor as officers of the court


at all times.......46

ii.

Any departure from that standard of high moral conduct


for lawyers works a fraud upon the court under Rule 60(b)(3)...47

A mere attempt by the United States Department of Justice to


engage in attorney misconduct towards the Court constitutes a
fraud upon the court...48

CONCLUSION....50
CERTIFICATE OF SERVICE...51

Case 1:08-cv-00700-PEC Document 447 Filed 08/27/15 Page 6 of 62

TABLE OF AUTHORITIES
Cases:

Page(s)

Adams v. Richardson, 351 F. Supp. 636 (D.D.C. 1972)32


Bell, et al., v. v. Federal Ins. Co., 2007 U.S. Dist. LEXIS 64020
(D.MN. 2007).24
BNSF Railway Company v. L.B. Foster Company,
2012 U.S. Dist. LEXIS 117237 (D.NE. 2012)...33
Brooker v. U.S., 107 Fed. Cl. 52 (2012)........40
Bynum, et al., v. District of Columbia, 215 F.R.D. 1 (D.D.C. 2003).33
Cardinal Health, Inc., et al., v. Delivery Specialists, Inc.,
2011 U.S. Dist. LEXIS 29891 (S.D.FL. 2011)..33
Cerruti 1881 S.A. v. Cerruti, Inc., 169 F.R.D. 573 (S.D.N.Y. 1996).49
Charter Practices International, et al., v. Robb,
2015 U.S. Dist. LEXIS 34111 (D.CT. 2015)35,39,49
Citibank, N.A., v. Osorno, 2006 U.S. Dist. LEXIS 64883 (S.D.N.Y. 2006).24
Cleveland Demolition Company, Inc., v. Azcon Scrap Corporation,
et al., 1986 U.S. Dist. LEXIS 30954 (E.D.VA. 1986).31,48
Commodore-Mensah v. Delta Air Lines, Inc.,
842 F. Supp. 2d 50 (D.D.C. 2012)....33
Davis v. Calvin, et al., 2008 U.S. Dist. Lexis 116529 (E.D.Ca. 2008)..20,31
Michael Derzack, et al., v. County of Allegheny, et al.,
173 F.R.D. 400 (W.D.PA. 1996)39,41,46,50
Dibella, et al., v. Hopkins, 2002 U.S. Dist. Lexis 19844 (S.D.N.Y. 2002)...32
Dietrick v. Securitas Security Services USA, 50 F. Supp. 3d 1265
(N.D.CA. 2014)..37
Dixon, et al., v. Comm. of Internal Revenue, T.C. Memo 2006-190;
2006 Tax Ct. Memo LEXIS 193 (U.S. Tax Ct. 2006)..15

Case 1:08-cv-00700-PEC Document 447 Filed 08/27/15 Page 7 of 62

TABLE OF AUTHORITIES, Contd


Cases:

Page(s)

Jay Dobyns v. United States, 91 Fed. Cl. 412 (2010)....15,20


Jay Dobyns v. United States, 106 Fed. Cl. 748 (2012)..15
Emma C., et al., v. Eastin, et. al., 2001 U.S. Dist. Lexis 16119
(N.D.Ca. 2001)..41,50
Evans, et al, v. Port Authority Trans-Hudson Corp., et al.,
2003 U.S. Dist. LEXIS 28259 (D.N.J. 2009)36
Fellheimer, Eichen & Braverman, P.C. v. Charter Technologies, Inc.,
57 F.3d 1215 (3d Cir. 1995)...40
First Pacific Bancorp, Inc., et al. v. Bro, et al., 847 F.2d 542
(9th Cir. 1988)...23,32
Florida Evergreen Foliage, et al., v. E.I. Du Pont De Nemours
and Company, et. al. 135 F. Supp. 2d 1271 (S.D.FL. 2001)38,50
Gardias v. The California State U., et al., 2010 U.S. Dist.
LEXIS 97575 (N.D.CA San Jose Div. 2010)...33
Vanessa Haldeman, et al., v. Golden, et al., 2008 U.S. Dist.
LEXIS 35327 (D.HI. 2008)..31,37
Hanshaw Enter., Inc. v. Emerald Dev., Inc., 244 F.3d 1128
(9th Cir. 2001)...41
Harris v. NCO Financial Systems, et al., 2009 U.S. Dist. Lexis
15037 (D.C.E.D.PA. 2009).34
Hartman, et al., v. Commissioner of Internal Revenue, T.C. Memo
2008-124; 2008 Tax Ct. Memo Lexis 126 (U.S. Tax Ct. 2008).38,42,43,45,46
Heath v. Walters, et al., 1998 U.S. App. LEXIS 18263 (7th Cir. 1998)...40
Hellstrom v. U.S. Dep't of Veteran Affairs, 201 F.3d 94 (2d Cir. 2000)..32
Hidalgo v. Winding Road Leasing Corp., et al.,
2013 U.S. Dist. Lexis 66623 (E.D.N.Y. 2013).32,37

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TABLE OF AUTHORITIES, Contd


Cases:

Page(s)

H.K. Porter Company, Inc., v. The Goodyear Tire & Rubber Company, Ind.,
536 F.2d 1115 (6th Cir. 1976)10,23
HSBC Bank USA, Natl Assoc., et al., v. Resh, et al.,
2014 U.S. Dist. LEXIS 16088 (S.D.W.VA. Hunt. Div. 2014)...31
In Re: Bailey, 182 F.3d 860 (Fed. Cir. 1999).41
In Re: E. I. du Pont de Nemours and Company
Benlate (R) Litigation, 918 F. Supp. 1524 (M.D.GA. 1995).16,24,35,39,42,
43,44,45,46,48
In Re: Enrique Antonio Ocon, 2007 Bankr. LEXIS 947
(Bk. S.D.N.Y. Miami Div. 2007).47
In Re: Rafail Theokary, 468 B.R. 729 (Bk. E.D.PA. 2012)38,44,46,50
International Fidelity Insurance Co. v.
The United States of America. 27 Fed. Cl. 107 (1992)..21,33
Irani v. Palmetto Health, et al., 2015 U.S. Dist.
LEXIS 81104 (D.S.C. 2015).32
Kingston, et al., v. Nelson, et al., 2008 U.S. Dist.
LEXIS 69745 (D.UT. C.Div.2008)...20
Koger v. Bryan, 523 F.3d 789 (7th Cir. 2008)....36
Link v. Wabash Railroad Company, 370 U.S. 626 (1962)..22
Marion v. City of Philadelphia et al., 1998 U.S. Dist.
LEXIS 11579 (E.D.PA. 1998)....34,36
Marshburn v. United States, 20 Cl. Ct. 706 (1990)...33
Martin, et al., v. Automobili Lamborghini Exclusive, Inc., et al.,
307 F.3d 1332 (11th Cir. 2002)..35,39
McGinnis v. New York University Medical Center,
2012 U.S. Dist. Lexis 9537 (S.D.N.Y. 2012)..32

Case 1:08-cv-00700-PEC Document 447 Filed 08/27/15 Page 9 of 62

TABLE OF AUTHORITIES, Contd


Cases:

Page(s)

Meloff v. New York Life Ins. Co., 51 F.3d 372 (2d Cir. 1995)32
Mundy et al., v. United States, 22 Cl. Ct. 33 (1990).....33
Murray v. Dillard Paper Co., et al.,
1999 U.S. Dist. LEXIS 22630 (E.D.VA. 1999)...34
Neeb-Kearney & Co., Inc. v. Dept. of Labor, et al.,
1992 U.S. Dist. LEXIS 7123, 2 (E.D.LA. 1992).34
Nielsen, et al., v. TIG Insurance Co., 2006 U.S. Dist. LEXIS 49002
(D.MT. Miss.Div. 2006)..34,37
Peter Kiewit Sons', Inc., v. Wall Street Equity Group, Inc.,
et al., 2012 U.S. Dist. LEXIS 69577 (D.NE. 2012)....39,48
Polk v. Local 16, International Union Bricklayers and
Allied Craftsmen, 1995 U.S. App. LEXIS 9758 (6th Cir. 1995)....24
Posey v. Lake Pend Oreille Sch. Dist. No. 84,
546 F.3d 1121 (9th Cir. 2008)..36
Quaker Chair Corporation v. Litton Business Systems, Inc.,
71 F.R.D. 527 (S.D.N.Y. 1976)34,35
Rezende v. Citgroup Global Markets, Inc., 2011 U.S. Dist.
LEXIS 45475, 2011 WL 1584603 (S.D.N.Y. Apr. 27, 2011)...49
Riverdale Mills Corp., v. United States et al.,
337 F. Supp. 2d 247 (D.MA. Cen. Div. 2004).32,36
Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir. 1978)48
Danny Sellers et al., v. United States, 110 Fed. Cl. 62 (2013)...40
Ian Owen Sharpe et al., v. United States, 112 Fed. Cl. 468 (2013)39,40,41
St. Regis Paper Co. v. United States, 368 U.S. 208, 229 (1961)...46
Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277 (8th Cir. 1995)....39

Case 1:08-cv-00700-PEC Document 447 Filed 08/27/15 Page 10 of 62

TABLE OF AUTHORITIES, Contd


Cases:

Page(s)

Takeda Chemical Industries, Ltd., et al., v.


Mylan Laboratories, Inc., et al., 549 F.3d 1381 (Fed. Cir. 2008)..40
United States v. Bowen, et al, No. 13-31078 (5th Cir. August 20, 2015).13,37
United States v. Cortina, 630 F.2d 1207 (7th Cir. 1980).47
Videojet Systems Intl., Inc., v. Eagle Inks, Inc. et al.,
2000 U.S. App. LEXIS 31337 (Fed. Cir. 2000)...39.49
White V. Tapella, 876 F. Supp. 2d 58 (D.D.C. 2012).37
Wong v. Hawaii Medical Center-West LLC, et al.,
2009 U.S. Dist. Lexis 96254 (D.HI. 2009)....23
Zimmerman, et al., v. Poly Prep Country Day School, et al.,
2012 U.S. Dist. LEXIS 78816 (E.D.NY. 2012)..36,44,49,50

Statutes
18. U.S.C. 1001(a)2,10,24
18. U.S.C. 150328
18. U.S.C. 151228
Rules of the Court:
Rule 60, Rules of the United States Court of Federal Claims (RCFC)..Throughout
RCFC 56..22-23,36-37
District of Columbia Rules of Profession Conduct (ER)
ER Rule 3.3..9
ER Rule 3.4..9
ER Rule 4.1..9

Case 1:08-cv-00700-PEC Document 447 Filed 08/27/15 Page 11 of 62

ER Rule 8.3..9
ER Rule 8.4..9

Case 1:08-cv-00700-PEC Document 447 Filed 08/27/15 Page 12 of 62

Pursuant to Rule 53 of the Rules of the Court of Federal Claims (RCFC), plaintiff
Jay Anthony Dobyns herein objects to the Special Masters Final Report and
Recommendation dated July 23, 2015, Court of Federal Claims Docket Document
Number 430 (hereinafter No. __), incorporating the Special Masters Opinion and
Order dated June 26, 2015 (No. 411) (NB: in view of No. 430s incorporation of No. 411,
collectively referred to hereinafter as Special Master Report). Plaintiff Dobyns requests
that this Rule 60(b)(3) proceeding continue, and that the Chief Judge reject the Special
Master Report and permit plaintiff to obtain final document discovery and take
depositions of employees of defendant United States, the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) and of the United States Department of Justice (DOJ)
and allow this matter to continue through to final proceedings and closing memoranda.
I.

Summary of argument.
A. The Standard of Review of the Special Master Reports findings of fact
and conclusions of law is de novo.
RCFC 53 establishes a de novo standard of review of the Special Master Report:
(f) Action on the Masters Order, Report, or
Recommendations. [.]
(3) Reviewing Factual Findings. The assigned judge must
decide de novo all objections to findings of fact made or
recommended by a master, unless the parties, with the
assigned judges approval, stipulate that:
(A) the findings will be reviewed for clear error; or
(B) the findings of a master appointed under RCFC
53(a)(1)(A) or (C) will be final.
(4) Reviewing Legal Conclusions. The assigned judge
must decide de novo all objections to conclusions of law
made or recommended by a master.

Although the Special Master did not make formal findings of fact and conclusions of law,
such are discernable and are objected to in the format set forth herein.
1

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B. The Court should entirely reject the Special Master Report for any of the
several independent and sufficient reasons set forth herein.
Plaintiff objects to the Special Master Report because the Special Master disregarded numerous directives from Judge Allegra to undertake various investigations in
particular form. The Special Master accepted an assignment with full notice of the
requirements to oversee the investigation but then promptly rejected and altered the
parameters of the investigation, finally cutting it off mid-discovery, without valid reasons
supported either by existing facts or controlling law. In the process, the Special Master
harmed the efficiency of the discovery process by limiting discovery just to matters
involving Christopher Trainor. The Special Masters disregard of express orders of
Judge Allegra also requires the belated conduct of the depositions and regrettably but
predictably, parts of the discovery phase to begin again, at least with respect to Valarie
Bacons conduct.
Before beginning the summary of objectionable factual and legal errors
committed in this Rule 60(b)(3) proceeding, plaintiff must point out the false choice
indeed, an only thinly-veiled threat that to challenge the Justice Departments breach
of ethical duties and to allege civil and criminal infractions committed during this lawsuit,
plaintiff must undergo an entirely new trial. This is not in the most remote sense
supported by Rule 60, by any federal law or by Judge Allegras instructions for this
proceeding, nor did the Special Master attempt to offer any support for the conclusion.
In so doing, the Special Master Reports attempted to deter plaintiff from further
pursuit of his claims that Justice Department attorneys lied to Judge Allegra, to plaintiff
and his counsel, and also to federal investigators in criminal violation of 18 U.S.C.
1001(a), as part of DOJs win-at-all-costs strategy. No such false choice exists between
2

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seeking accountability and sanctions against the Justice Department for the conduct
described herein on the one hand, and retaining the victory derived from plaintiffs and
the Courts hard work during a three week trial in this matter. The Court should
disregard the Special Masters unsupported conclusion that all could be lost to plaintiff
by pursuing his Rule 60 motion.
C. The Special Master Report was certain to result in factual and legal error
when the Special Master refused to consider instances of misconduct
alleged in plaintiffs November 19, 2014 Rule 60 Motion and in plaintiffs
Rule 60 opening memorandum.
The Special Master committed legal error and fatally prejudiced these Rule 60
proceedings by rejecting Judge Allegras standard for fraud on the court and by
ignoring, without explanation or support in the law, Rule 60(b)(3)s other two prongs:
misrepresentation and other misconduct. The Special Master improperly rejected all of
the bases set forth in plaintiffs November 19, 2014 Rule 60 motion for indicative ruling
(No. 313), which Judge Allegra granted on December 1, 2014 (No. 316), grounds which
plaintiff repeated in his Special Master Rule 60 memorandum, pp. 7-8 (No. 337).
One particularly critical allegation was the distinct possibility, one certainly worthy
of discovery, that DOJ improperly influenced lead ATF settlement negotiator Ronnie
Carters trial testimony, not merely before trial but also by using electronic means during
his testimony. Had Ronnie Carter consistently testified that ATF orders were included
within paragraph ten of the September 20, 2007 settlement agreement between the
parties, not only would plaintiff have won his claim of breach of express terms of the
contract, but plaintiff could have sought damages for his lost benefits of the bargain.
When the Special Master failed to accurately portray the nature of Ronnie Carters trial
testimony in his April 7, 2015 order limiting the scope of the proceedings (No. 348,
3

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plaintiff filed his April 12, 2015 motion for reconsideration (No.352), explaining both the
testimony of Carter and the potential impact of DOJs misconduct, as alleged. The
Special Master refused to consider this issue further and improperly limited the scope of
proceedings to merely the allegations regarding threats against Christopher Trainor. All
of this was incorrect and even rises to the level of clear legal error, especially in light of
Judge Allegra directing that the proceedings should follow plaintiffs motion.
D. The Special Master Report contains the following factual and legal error.
The Special Master improperly substituted his own judgment and orders for
Judge Allegras express and mandatory parameters of this Rule 60 proceeding, without
requesting or receiving from Judge Allegra any authorization to limit the proceeding or
to ignore express directives in existing opinions and orders establishing this proceeding.
1) The Special Master disregarded Judge Allegras December 1, 2014, Indicative
Ruling as follows:
a)

The Special Master wrongfully refused to investigate conduct

regarding Valarie Bacon:


The record reveals at least two instances of conduct by
defendants counsel that, in the courts view, provide
indication that fraud on the court has occurred here. [.]
Testimony at trial indicated that Valerie Bacon (sic), an
attorney in ATFs Office of General Counsel, attempted to
convince SAC Atteberry not to reopen the arson
investigation.1
Judge Allegras indicative ruling required the investigation of the allegations regarding
Valarie Bacon, but the Special Master disregarded that directive under a flawed
adoption of a different legal standard for fraud on the court.

Opinion, Dobyns v. United States, December 1, 2014, No. 316, p. 4.


4

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b)

The Special Master refused to accept Judge Allegras designation

in page 4, footnote 4 of his December 1, 2014 Indicative Ruling (No. 316) of the
standard for fraud on the court:
1. The Sixth Circuit has indicated that fraud on the court
consists 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),
cert. denied, 513 U.S. 914 (1994); see also 11 Wright &
Miller, supra, at 2860; 12 Moore's Federal Practice
60.21(4)(a) (3d ed. 2014).
Judge Allegras selection of a definition of fraud on the court was tailored to deal with
attorney misconduct and contained no element of reliance or requirement of alteration
of the trial outcome. The Special Master rejected what should have been the controlling
definition of fraud on the court, one that Judge Allegra, in his December 1, 2014, as a
practical matter, required the Special Master to utilize. Instead, the Special Master
improperly adopted a more limiting fraud definition standard in his April 7, 2015 Opinion
and Order (No. 348), utilized in ordinary common law fraud cases:
The word fraud has a common law meaning that has
always been defined to require that the person said to be
defrauded show prejudice from having been deceived. The
defrauded entity must show reliance that it did nor did not
do something because of the fraud. E.g., 7 Corbin on
Contracts, 28.14 (rev. ed. 2002).
The Special Master had the option of declining this very important assignment, or
else seeking from Judge Allegra a variance from the legal standards imposed upon this
5

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Rule 60(b)(3) proceeding. Instead, the Special Master accepted the task but
immediately changed the scope of the inquiry from a judicially-intrinsic fraud on the
court standard as defined by Judge Allegra, to a common law fraud proceeding. By
doing so, the Special Master materially prejudiced plaintiffs rights and made the
eventual dismissal of this action a foregone conclusion. Logically extrapolated, the
Special Masters April 7, 2015 Opinion and Order made clear that he did not believe
these proceedings should have been ordered, adopting a definition of fraud and
rejecting the rest of Rule 60(b)(3) in a manner supportive of that conclusion. In so doing,
DOJ attorneys received carte blanche to escape meaningful discovery of attorney
misconduct as long as the witnesses ignored threats and held firm to truthful testimony.
c)

Even under that improper standard for fraud on the court, the

Special Master incorrectly analyzed the facts of this matter by failing to acknowledge:
i) any new findings of attorney fraud, misrepresentation or other misconduct would
require the issuance of a supplemental trial court opinion, which an altered or amended
trial court judgment would identify and adopt; ii) the issuance of any sanctions against
the Justice Department would have to be specifically noted in a supplemental or
amended trial court opinion and adopted in an altered and amended trial court
judgment; iii) if proven, suborned perjury of witness Ronnie Carter, the lead negotiator
for the September 20, 2007 settlement agreement, would require additional, limited
testimony as to whether the 2007 agreement included ATF Orders, with the Court
potentially awarding lost benefit of the bargain damages and thereby altering and
amending the judgment; and iv) the issuance of sanctions against DOJ in favor of
plaintiff Dobyns would have altered the Judgments monetary award in plaintiffs favor.

Case 1:08-cv-00700-PEC Document 447 Filed 08/27/15 Page 18 of 62

2)

The Special Master ignored Judge Allegras express instruction to utilize

the other two portions of RCFC 60(b)(3), misrepresentation or other misconduct, as a


basis for investigation. As a result, the Special Master improperly obstructed discovery
into DOJ misconduct and wrongly terminated this Rule 60(b)(3) proceeding.
a)

Without an enabling order from Judge Allegra, the Special Master

refused, throughout this Rule 60 proceeding, to acknowledge the language of Rule


60(b)(3) containing two other grounds for Rule 60(b)(3) relief besides fraud on the court,
and refused to allow plaintiff to establish proof of DOJ misrepresentation or other Rule
60 misconduct. Judge Allegras Order establishing the Special Masters powers states:
[t]he following procedures shall govern, inter alia, the gathering of further evidence in
this case, particularly insofar as it relates to the potential that one or more of defendants
attorneys may have committed fraud on the court under RCFC 60.2 The Special
Master ignored and rewrote those critical procedures, without grounds or authority.
b)

The Special Masters duty to follow the directives of Judge Allegras

February 23, 2015 Order were mandatory, and not discretionary with the Special
Master. Paragraph 15 of the Order states:
Consistent with RCFC 53(b)(2) and the provisions herein,
the assigned judge hereby specifies in the paragraphs that
follow:
(A)
the special masters duties, including any
investigation or enforcement duties, and any
limits on the special masters authority under
RCFC 53(c);3
Paragraph 21 of the Order establishing duties of the Special Master expressly states:
21. The special master will make findings assisting the
assigned judge in determining whether defendants attorneys, in
2
3

Order, Dobyns v. United States, February 23, 2015, No. 335, p. 1


Id., p. 4 (emphasis added).
7

Case 1:08-cv-00700-PEC Document 447 Filed 08/27/15 Page 19 of 62

the conduct of this case, effectuated a fraud upon the court


under RCFC 60(d)(3). As may be necessary, the special
master may also consider whether there are other grounds
for relief from a final judgment in this case under RCFC 60,
including the existence of fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by
an opposing party under RCFC 60(b)(3).4
RCFC 60(b)(3) makes clear that misrepresentation or other misconduct were grounds
available to the Special Master to investigate in this proceeding:
Rule 60. Relief From a Judgment or Order. [.] (b)
Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order,
or proceeding for the following reasons: [] (3) fraud
(whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(emphasis added)
Despite these clear directives from Judge Allegra, the Special Master determined
that he possessed the discretion to ignore: (i) the February 23, 2015 Order establishing
his duties; (ii) the obligations and the express language of Rule 60(b)(3); (iii) Judge
Allegras December 1, 2014 Indicative Ruling; and (iv) the Federal Circuit Courts
remand order. The integrity of these Rule 60 proceedings were materially and
improperly altered as a result. When plaintiff objected to these defects in the Special
Masters conduct of the proceedings, instead of addressing these errors, the Special
Master marginally admonished plaintiffs counsel. These Rule 60 proceedings must
now be continued in a timeframe well beyond what would have been required, had the
Special Master carried out the duties expressly assigned to him.
3)

The Special Master refused to include within this Rule 60 proceeding the

enumerated allegations of misconduct set forth in plaintiffs November 19, 2014 (No.
4

Id., p. 6 (emphasis added).


8

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313) Motion for Rule 60 Relief, and thereby disallowed investigation, discovery and
memoranda on those topics. 5 The Special Master did so out of the incorrect reasoning
that none of those allegations, if proven, affected the final judgment under Rule 60,
despite that (a) this was not Judge Allegras standard for fraud on the court, and (b)
plaintiffs allegations implicated the other two prongs of Rule 60(b)(3), i.e.,
misrepresentation and other misconduct by DOJ attorneys.
DOJs actions, as alleged, violate standards of the proscribed Rule 60(b)(3)
misconduct which Judge Allegra requested the Special Master investigate. Plaintiff
alleges that such 60(b)(3) conduct standards include violations of:

Rule 3.3 - Candor to Tribunal. (a)(1)(2)(3)(4)(b)(c)(d)


Rule 3.4 - Fairness to Opposing Party and Counsel.(a)(b)(c)(d)(e) (f)((1)(2))
Rule 4.1 - Truthfulness in Statements to Others. (a) and (b)
Rule 8.3 - Reporting Professional Misconduct. (a)(b) and (c)
Rule 8.4 Misconduct. (a)(b)(c)(d)(e)(f)(g)
4)

The Special Master improperly cut off discovery by refusing to allow

depositions on even the single remaining topic that the Special Master permitted for
investigation, plaintiffs allegations of threats against Christopher Trainor by Charles
Higman and David Harrington, and did so in the face of uncertain compliance by the
Justice Department with document production obligations. Judge Allegra and the
5

The parties agreed that the scope of proceedings would include plaintiffs enumerated
bases in his Rule 60 motion and in Judge Allegras December 1, 2014 indicative ruling:
During the telephonic status conference held by the court on
March 3, 2015, the parties expressed their agreement that
the allegations described in plaintiffs Rule 60 Motion, ECF
No. 313, will guide the special masters inquiry into this
matter. Plaintiff filed yesterday a memorandum elaborating
on the allegations found in his Rule 60 Motion.
Special Master Order, March 10, 2015, p. 12 (No. 340).

Case 1:08-cv-00700-PEC Document 447 Filed 08/27/15 Page 21 of 62

Federal Circuit Court of Appeals concluded that, at minimum, allegations that (1) retired
ATF Group Supervisor Charles Higman and certain DOJ Civil Division attorneys
attempted to intimidate witness and ATF Internal Affairs Division (IAD) Agent
Christopher Trainor, and (2) former ATF Office of Chief Counsel attorney of record
Valarie Bacon attempted to obstruct ATFs 2012 re-opening of the arson investigation of
Jay Dobyns residence, merited full investigation for potential fraud on the court or
misrepresentation or other misconduct under Rule 60. Plaintiff contends that fraud on
the court occurred as a result of DOJ lawyers now-documented agreement to withhold
from Judge Allegra the allegations of Higmans threat upon Trainor, an effort led by trial
counsel David Harrington and approved by then-Commercial Branch Director Jeanne
Davidson, and that more than sufficient evidence of alleged threats by Harrington
against Trainor exist to conduct depositions.6 Evidence produced to date documents
that attorney Harrington violated federal criminal statute 18 U.S.C. 1001(a) with his
intentional false statements to Judge Allegra and to Office of Professional Responsibility
(OPR) federal investigators on the subject of Valarie Bacon. Depositions are essential.
E. The Special Master had not power to overrule Judge Allegras orders.
The conduct of this proceeding was set by the trial judge; even defendants prior
invocation during these proceedings of H.K. Porter Company, Inc., v. The Goodyear

Discovery is incomplete (and disconcerting): no depositions have yet been taken of


the eight witnesses ordered to appear by the Special Masters April 13, 2015 Order,
paragraphs 5-7, (No. 353), which were postponed due to the Justice Departments
delays in document production and subsequently-abandoned and overruled claims of
privilege; extensive redactions have occurred in key portions of the Justice
Departments documents concerning the threats by Higman to Trainor; no emails
regarding Civil Division or ATF communications with Charles Higman have been
produced; and a year-long gap in emails on the topic of the Trainor threats exists in
DOJ documents.
10

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Tire & Rubber Company, Ind., 536 F.2d 1115 (6th Cir. 1976) establishes that Judge
Allegra, not the Special Master, regulated these proceedings: the scope of discovery is
within the sound discretion of the trial judge. Id. at 1119.
Judge Allegras December 1, 2014 indicative ruling leaves little doubt that: (1) he
wanted to know of claims of witness intimidation during trial; (2) the parties should take
evidence on the issue of potential threats; and, (3) if DOJ lawyers intentionally withheld
such information, he would have sanctioned offending attorneys. Judge Allegra had an
expectation and right to rely on DOJ attorneys truthfully reporting misconduct to allow
him to conduct inquiry and issue sanctions, if appropriate. The absence of such
disclosures injures the integrity of courtroom proceedings, including eliminating the
opportunity to explore any other potential instances of witness intimidation or tampering.
Adverse findings against lead trial counsel David Harrington are certain even
without plaintiffs depositions of ATF agents Trainor or Machonis, who are anticipated to
testify that they heard Harrington twice-threaten Trainors career if Trainor reported to
Judge Allegra the fact of Charles Higmans threatening voicemail, left the same day that
Trainor found a construction cone in his SUV exhaust pipe. Plaintiff also seeks to
depose Higman as to whether Harrington conferred with Higman (1) before the June 30,
2013 threatening voicemail from Higman to Trainor and simultaneous appearance of the
construction cone in Trainors SUV exhaust pipe (Item 1), or (2) before the subsequent
nine minute call with Trainor, in which Higman used legalistic terms as part of walking
back his implied threat to Trainor and his family (Item 2).7 If Harrington engaged in

In its response to the Special Masters June 26, 2015 advisory opinion, defendant
recited portions of Higmans deposition and trial testimony where Higman referred to
case law supporting the absence of ATF jurisdiction to investigate the arson at
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Item 1, then he may have committed the crime of facilitating the intimidation of a federal
witness, and if he engaged in Item 2, then his actions assisted to cover up the threat or
act of intimidation. In this context, the appearance of three criminal defense attorneys to
defend the ordered depositions of four government attorneys is understandable. 8
As to whether DOJ attorneys had anything to do with Charles Higmans call to
Christopher Trainor, combined with a construction cone in the exhaust pipe of Trainors
SUV, the Special Masters termination of discovery made certain that plaintiff would
never learn DOJs role. Plaintiff considered an immediate appeal to Judge Allegra to
prevent the use of time in conducting a misdirected proceeding, but because Judge
Allegra was still available to correct Special Master error, plaintiff proceeding with the
Rule 60 investigation despite the Special Masters improper limits on the proceeding.
While the Special Master left such matters to be handled as DOJ personnel
issues, it was not the purpose of this Rule 60 proceeding, as Judge Allegra made clear
in his December 1, 2014 indicative ruling and in his February 23, 2015 Order
establishing the Special Masters duties, to leave to DOJ the discipline of its own
attorneys. This Court is in charge of its courtroom and trials, and Judge Allegra intended
this proceeding to bring accountability to DOJ attorneys for violating the Courts trust.

plaintiffs house. That Higman used legalistic terms at his depositions and trial after
conferring with DOJ Civil Division attorneys is exactly plaintiffs point. Plaintiff alleges
that David Harrington, at minimum, may have improperly conferred with Charles
Higman before the nine minute telephone call between Higman and Trainor, instructing
Higman on how to deflate the previous voicemail threat and construction cone intrusion.
8

Attorneys specializing in white collar criminal defense were hired by DOJ attorneys
Harrington, Niosi, Onyema and Bouman (formerly ATFs Office of Chief Counsel), to
defend their depositions, evidencing a facial concern about potential criminal liability.
12

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At minimum, depositions to ask these questions of Harrington, Higman, Trainor and


Machonis are necessary, and plaintiff is entitled to ask questions of those witnesses.
To these allegations and justifications for depositions, plaintiff has also alleged
the likelihood that former ATF Office of Chief Counsel attorney of record Rachel
Bouman obstructed ATFs criminal investigation of Higman, which ATF closed without
interviewing Higman, by convincing ATFs Michael Gleysteen to reject Trainors
allegations of threats by Higman as unfounded. Evidence produced to date includes
ATF statements to Trainor that DOJs defense of this lawsuit prevented ATF from
interviewing Higman. Boumans deposition, along with Gleysteens, would clarify
whether yet another obstruction of justice by ATF related to this action occurred. If so,
pursuant to the legal standards set forth in this memorandum, such conduct would
qualify as fraud on the court, and also as defendant and attorney misconduct sufficient
to alter and amend the August 28, 2014 Judgment. The Court could monetarily sanction
DOJ, potentially payable directly to plaintiff for, inter alia, his time in this proceeding.
Recent federal cases regarding misconduct by Justice Department attorneys
allow this Court to join in sending a message to the United States that DOJ attorneys
must abide by the same ethical rules and laws imposed on all other attorneys:
The district court also found that cooperating defendants called
to testify by the government lied, an FBI agent overstepped,
defense witnesses were intimidated from testifying, and
inexplicably gross sentencing disparities resulted from the
governments plea bargains and charging practices.
United States v. Bowen, et al, No. 13-31078 (5th Cir. August 20, 2015). As prior
pleadings demonstrate, this action has generated significant interest in the public and
press. The Courts effective pursuit of government attorney misconduct would

13

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emphasize to the federal government and the Justice Department that civil and criminal
laws apply equally to government and private attorneys, whether DOJ agrees or not.
The Special Masters conclusion was that, as long as an intimidated witness
demonstrates the fortitude and personal courage to testify truthfully, no injury to the
integrity of the proceedings occurred and no fraud upon the court took place. Plaintiff
contends that Judge Allegra would have disagreed with the Special Master in light of the
scope of the proceedings described in the February 23, 2015 Order, the intent of the
fraud and misconduct proceedings as discussed in the December 1, 2014 indicative
ruling, and the express language of Rule 60(b)(3). Plaintiff objects to the Special Master
Reports rejection of directives in those enabling orders by preventing depositions and
to the Reports termination of these Rule 60 proceedings.
ARGUMENT
II.

The Special Master improperly disregarded Judge Allegras rulings and


the remand of the Federal Circuit as to the scope, purpose and
discovery guidelines for this Rule 60 proceeding.
A. It is the law of the case that a Rule 60 proceeding must occur, unfettered
by the Special Masters disagreement with prior rulings as to the scope
of proceedings, with discovery and advocacy opportunities to prove
that fraud on the court, misrepresentation or misconduct occurred.
The Court should enforce Judge Allegras directives, ones the Special Master

rejected, in order to allow discovery and investigate plaintiffs allegations:


In their motion for reconsideration, petitioners complain
that during the course of the evidentiary hearing conducted on
remand from the Court of Appeals, as required by DuFresne,
this Court denied them access to Government documents that
showed the extent of respondent's continued misconduct in
attempting to conceal the trial attorneys' misconduct.

14

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Dixon, et al., v. Comm. of Internal Revenue, T.C. Memo 2006-190; 2006 Tax Ct. Memo
LEXIS 193, at 8 (U.S. Tax Ct. 2006). The Dixon decision guides the Special Master to
follow Federal Circuits remand directives for conduct of the Rule 60 proceedings
described in Judge Allegras December 1, 2014 indicative ruling:
The "law of the case" doctrine requires a decision on a legal
issue by an appellate court to be followed in all subsequent
proceedings in the same case. Herrington v. County of
Sonoma, 12 F.3d 901, 904 (9th Cir. 1993). [.] Upon remand
of the case, a corollary of the law of the case doctrine, known
as the rule of mandate, requires the lower court to implement
both the letter and the spirit of the appellate court's mandate.
The rule of mandate is similar to, but broader than, the law of
the case doctrine and prohibits the lower court from
disregarding the appellate court's explicit directives.
Herrington v. County of Sonoma, supra at 904.
Dixon, supra, at 8 (allowing the misconduct proceeding to continue).
Judge Allegras October 1, 2012 order denying the parties cross-motions for
summary judgment invoked the doctrine of law of the case in barring the re-visitation of
prior rulings by the trial court regarding the direction of trial level proceedings:
See Dobyns, 91 Fed. Cl. at 417-18; see also SGS-92-X003
v. United States, 74 Fed. Cl. 637, 655 (2007). These
arguments are no more persuasive the second time around.3
Indeed, they are among several found in defendant's briefs
that now, and for any future trial, are governed by law-of-thecase considerations. See Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 815-16, 108 S. Ct. 2166, 100
L. Ed. 2d 811 (1988); see also Alli v. United States, 105 Fed.
Cl. 440, 2012 WL 1708307, at *4 n.3 (Fed. Cl.).
Dobyns v. United States, 106 Fed. Cl. 748, 750 (2012). Judge Allegra made clear in his
December 1, 2014 Rule 12.1 indicative ruling, and the Federal Circuit agreed in
remanding the matter, that the trial court, where the alleged misconduct occurred, is
where the investigation should occur, as opposed to DOJ personnel proceedings:

15

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The alleged fraud occurred in this Court, and this Court is


the proper, if not the only, forum in which the matters raised
in the present petition can, in the first instance, be
determined. See Ex Parte Bradley, 7 Wall. 364, 372, 74 U.S.
364, 372, 19 L. Ed. 214, 217 (1868)
In Re E. I. du Pont de Nemours - Benlate Litigation, 918 F. Supp. 1524, 1540 (MD.GA.
1995). The Special Master Report incorrectly defers to DOJ disciplinary mechanisms.
B. The specific language of Judge Allegras prior rulings ordered that this
matter proceed through depositions, discovery and final briefing.
The Special Masters April 7, 2015 Order listed the duties and directives set forth
in Judge Allegras February 23, 2015 Order and December 1, 2014 indicative ruling:
At Page 1: The undersigned special master was appointed
to investigate allegations of fraud upon the court in this case
under Rules of the Court of Federal Claims (RCFC) 60 and
other grounds for relief from final judgment. See Order, ECF
No. 334; Order, ECF No. 335.
At Page 4: By his order of February 23, 2015, after the Chief
Judges appointment of the undersigned as a special master
that day, Judge Allegra authorized the special master to
investigate and enforce the matters discussed in paragraph
21 herein. See Order at 4, ECF No. 335.
At Page 4: Paragraph 21 indicated that the special master
was to make findings as to whether defendants attorneys, in
the conduct of this case, effectuated a fraud upon the court
under Rule 60(d)(3). Id. at 6. If necessary, the special master
was also to consider whether there were other grounds for
relief from a final judgment in this case under Rule 60,
including the existence of fraud, misrepresentation, or
misconduct by an opposing party under Rule 60(b)(3). Id.
At Page 5: Rule 60(b)(3) provides that this court may relieve
a party from a final judgment for fraud, misrepresentation, or
misconduct by an opposing party. RCFC 60(b)(3). Rule
60(d)(3) provides that the other provisions of Rule 60 do not
prevent this court from setting aside a judgment for fraud on
the court. RCFC 60(d)(3).

16

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Paragraph 4 of Judge Allegras February 9, 2015 Order (No. 330) states: the special
master will exercise the full range of authority permitted by the courts rules, to and
including: (i) the taking of discovery of all forms, including depositions and all forms of
electronically stored information (ESI).
Paragraph 17 of Judge Allegras February 23, 2015 Special Master Order states:
17. Pursuant to RCFC 53(c)(1), the special master may:
(A) regulate all proceedings;
(B) take all appropriate measures to perform the assigned
duties fairly and efficiently; and
(C)
exercise the assigned judges power to compel, take,
and record evidence, including the resolution of any issues
regarding the admissibility of evidence.
Judge Allegras Order establishing the Special Masters duties states at paragraph 22:
Consistent with this mandate, the central functions of the
special master are to: (A) Gather evidence to include
documents of all forms (including all forms of electronically
store (sic) information (EDS)); audio recordings, the taking of
oral or video depositions to include the depositions of any
attorney, or other government officer or other individuals
subject to this order; and the taking of oral testimony []
And finally, page six of the Courts December 1 Indicative Ruling, paragraph 3, states:
If the Federal Circuit remands the action, the court will allow
both parties an opportunity to present argument, as well as
relevant evidence and other testimony, before ruling on a motion
for reconsideration under RCFC 60. See Hazel-Atlas Glass
Co., 322 U.S. at 251; 11 Wright & Miller, supra, at 2870.
The Special Master Report breaches or contradicts these duties, powers and
expectations awarded to and accepted by the Special Master from Judge Allegra.
C. The Special Master Report contradicted the order for eight depositions
without controverting its reasoning.
i.

The Special Master ordered depositions based on need and the


stipulation of plaintiff and defendant to conduct depositions.

17

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At page 13 of the parties Joint Status Report filed April 10, 2015 (No. 350),
defendant United States conceded the need for depositions:
The United States concurs with plaintiff that the depositions of
the following five individuals is appropriate.
a.
b.
c.
d.
e.

Christopher Trainor;
Daniel Machonis (who has recently left ATF);
David Harrington;
Corinne Niosi; and
Rachel Bouman.

We also concur with plaintiff regarding the stated length of the


depositions of Mr. Machonis, Mr. Harrington, Ms. Niosi, and
Ms. Bouman. [.] We also request that Mr. Trainors
deposition be scheduled for approximately seven hours, in
light of the central role he plays regarding this subject matter.
Beyond those five depositions, we additionally propose to
depose plaintiff, Jay Dobyns [.] The United States
anticipates that the six depositions could be taken shortly
after the conclusion of document production and, barring any
significant scheduling conflicts with a witness, could be
conducted during the course of a single week.
Id. Thereafter, by order dated April 13, 2015 (No. 353), the Special Master ordered the
appearance of eight witnesses total for depositions:
Upon consideration of the Joint Status Report it is ORDERED:
The parties, as agreed, may take the depositions of the
following persons:
a.
b.
c.
d.
e.

Christopher Trainor
Daniel Machonis
David Harrington
Corinne Niosi
Rachel Bouman

6. Additionally, the parties may take the depositions of


Charles Higman and Veronica Onyema.
7. Defendant may take the deposition of plaintiff.
[.] At the conclusion of the depositions, the parties will be
heard as to whether any additional proceedings (including
18

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discovery) are warranted and how the special master should


conclude his duties.
Special Master Order, April 13, 2015 (No. 353). The parties moved to postpone the
depositions in light of defendants delayed document production. The Special Masters
order continuing the depositions merely postponed them until discovery was complete.
See April 29, 2015 Order of Special Master (No. 367) (I will invite counsel for the
parties to set new dates for the depositions in consultation with the special master.)
ii.

The Special Master conceded in prior opinions that the unique nature
of this Rule 60 inquiry requires investigation and discovery.

The Special Masters April 7, 2015 Opinion and Order, p. 12, (No. 348) noted the
need for discovery of the accusations regarding threats against Agent Trainor:
However, a different issue is presented as to the behavior of
the DOJ attorneys who may have learned of the Higman
threat and failed to bring it to the courts attention, or even
worse, threatened Trainors career when he suggested
informing the court. The attorneys conduct may well have
threatened the administration of justice, although it is unclear
at this stage how such a threat might have impacted the
judgment in this case or plaintiffs ability to present his case.
This matter must be investigated by the special master.
The Special Master soberly characterized the gravity of the allegations of attorney
misconduct in his June 19, 2015 Opinion and Order (No. 406):
[W]hile it is not denominated as one of the factors in the case
quoted above, it surely is of significance that this is serious
litigation involving a specific claim of witness intimidation by
lawyers for the United States that lead a judge to require an
investigation by a special master.
Id. at 11. In that same June 19, 2015 Opinion, the Special Master concluded:
In this case, the court found that a witness who had given
detailed testimony about the failures of the ATF to protect a
former agent, thereby harming the governments case, may
have been threatened with damage to his career if he told
that he had been threatened. While the truth of that
assertion is yet to be tested, if true, it may constitute the
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crime of obstruction of justice. Moreover, it was the judge


himself who initiated the investigation of these events to see if
they warranted setting aside a final judgment. Surely that
allegation, which the judge determined to be serious enough
to warrant extraordinary action, can be said to be alleged
nefarious misconduct if that is in fact the standard.
(emphasis added).
Id. at 13. Plaintiff should have the opportunity to conduct the seven depositions previously
ordered, now that DOJ has finally produced basic documents, which the Special Masters April
29, 2015 order identified as the cause for delay in the conduct of depositions. The Justice

Department should not be able to use its delay in production and failed assertion of the
deliberative process privilege in order to avoid depositions. Kingston, et al., v. Nelson, et
al., 2008 U.S. Dist. LEXIS 69745, 4 (D.UT. C.Div.2008); Davis v. Calvin, et al., 2008
U.S. Dist. Lexis 116529, at 3 (E.D.CA. 2008).
The Special Masters order permitting depositions was consistent with Judge
Allegras published opinion denying defendants motion to dismiss plaintiffs complaint:
[A]s noted by the drafters of Rule 26, [t]he purpose of
discovery is to allow a broad search for facts, the names of
witnesses, or any other matters which may aid a party in the
preparation or presentation of his case. Fed. R. Civ. P. 26(b)
advisory committee notes, 1946 amend.; see also Osage
Tribe of Indians of Okla. v. United States, 84 Fed. Cl. 495,
497 (2008). The year after these comments were written, the
Supreme Court emphasized that [m]utual knowledge of all
the relevant facts gathered by both parties is essential to
proper litigation. Hickman v. Taylor, 329 U.S. 495, 507
(1947). For discovery to have that leveling effect
particularly, where there is an initial informational imbalance
among the parties, and, especially, where one of the litigants
is a government agency that has privileged access to
information a claimant must not be required, ab initio, to
aver all or nearly all the facts subservient to its claims. See
al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009) [.]
Jay Dobyns v. United States, 91 Fed. Cl. 412, 426-427 (2010). Plaintiff submits that
Rule 60(b)(3) depositions and final briefing should proceed for the reasons to follow.
20

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III.

The extremely simple nature of the August 28, 2014 Final Judgment
demonstrates why a determination of the trial court to sanction DOJ
attorneys would alter or amend the Final Judgment under Rule 60.
The language of the August 28, 2014 Final Judgment, Document No. 288, is

simple, making this Rule 60 analysis equally non-complex. The Final Judgment states:
In the United States Court of Federal Claims No. 08-700 C
JAY ANTHONY DOBYNS
v.
THE UNITED STATES

JUDGMENT

Pursuant to the courts Opinion, filed August 25, 2014,


IT IS ORDERED AND ADJUDGED this date, pursuant to
Rule 58, that the plaintiff recover of and from the United
States, damages in the amount of $173,000.00.
Hazel C. Keahey
Clerk of Court
August 28, 2014
By:

s/Debra L. Samler

Deputy Clerk

This Rule 60 proceeding could alter or amend the Judgment in several ways.9
First, any findings of fact, conclusions of law or descriptions of sanctions regarding DOJ
attorney misconduct would appear in a re-issued trial opinion, with a new date, or in a
supplemental trial opinion; either change would be set forth in a final judgment as an
alteration or amendment to the judgment.

Plaintiff may simultaneously pursue all three Rule 60(b)(3) theories fraud. International
Fidelity Insurance Co. v. The United States of America. 27 Fed. Cl. 107, 109 (Cl.Ct.
1992). (Under the federal rules, parties may assert inconsistent allegations, and will not
be forced to select a theory on which to seek recovery. citing Molsbergen v. United
States, 757 F.2d 1016, 1018-19 (9th Cir. 1985)).

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Second, if the Court sanctions DOJ attorneys and orders moneys to be paid to
the court registry or to the plaintiff, such would be noted in an amended or altered final
judgment. Third, if the trial judge determined that fraud on the court, misrepresentation
or misconduct by DOJ occurred, such witness intimidation and tampering by DOJ, then
the underlying damages to plaintiff might increase as part of continuing violations by
DOJ of the covenant of good faith and fair dealing found in the September 16, 2014
Trial Opinion to have existed in the parties September 20, 2007 settlement agreement.
Plaintiff must pursue discovery to argue that the Trial Opinion must be
supplemented and the Final Judgment alter or amended, and that sanctions against
DOJ attorneys should issue, with sanctions and other damages paid to plaintiff. The
Special Master Report has taken those opportunities entirely from plaintiff, thereby
substantively voiding much of Judge Allegras December 1, 2014 Indicative ruling and
February 23, 2015 Order10, despite Rule 60(b)(3)s language.
IV.

Plaintiffs RCFC 56(d) factual declarations are sufficient to prevent


summary termination of this Rule 60 proceeding.
Plaintiff Jay Dobyns and undersigned counsel have submitted declarations

(Exhibits A and B hereto) describing expectations of factual discovery under RCFC


56(d) sufficient to allow depositions to proceed. Plaintiff submits that an analogous
analysis of the Special Master Report under RCFC 56(d) is appropriate, given that

10

Judge Allegras February 23, 2015 reference in his Order to Rule 60 violations by a
party, i.e., the United States, includes fraud upon the court attempted by civil division
attorneys. The Supreme Court has held that an attorneys knowledge and behavior is
imputed to the client: each party is deemed bound by the acts of his lawyer-agent and
is considered to have "notice of all facts, notice of which can be charged upon the
attorney. Link v. Wabash Railroad Company, 370 U.S. 626, 633-34, 1962) (citing Smith
v. Ayer, 101 U.S. 320, 326, 25 L. Ed. 955).
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termination of this proceeding will de facto enter judgment by leaving the present
August 28, 2015 judgment in place without alteration or amendment:11
If "matters outside the pleading are presented to and not
excluded by the court, [a motion to dismiss for failure to state
a claim] shall be treated as one for summary judgment." Fed.
R. Civ. P. 12(b). See Darring v. Kincheloe, 783 F.2d 874 (9th
Cir. 1986). Pleadings in this case were accompanied by
depositions. Summary judgment was procedurally proper.
First Pacific Bancorp, Inc., et al. v. Bro, et al., 847 F.2d 542, 545 (9th Cir. 1988). The
same principles establishing a right under RCFC 56 to complete necessary discovery
before a trial court action is terminated, support plaintiffs Rule 60 deposition requests:
(d) When Facts Are Unavailable to the Nonmovant.
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
Federal courts require the completion of discovery before allowing summary
judgment. Wong v. Hawaii Medical Center-West LLC, et al., 2009 U.S. Dist. Lexis
96254, at 5-6 (D.HI. 2009). Where an RCFC 56(d) declaration proves that a deposition
would aid in defense of a summary judgment motion, the deposition should be allowed:
Plaintiff [...] averred that summary judgment would be premature
in part because Plaintiff has taken no depositions. [.] Although
summary judgment can be "an effective device to protect parties
11

Defendant, in its Reply (No. 424) to plaintiffs response to the Special Masters June
26, 2015 Order proposing to terminate these Rule 60 proceedings, overclaimed its
common law by arguing that the standard for Rule 60 discovery was different than for
entitlement to discovery under Rule 56. Not a single case cited by defendant stood
for that specific argument, limiting depositions, in a Rule 60(b)(3) proceeding in contrast
with Rule 56. To the contrary, defendants recitation of H.K. Porter Co., Inc. v.
Goodyear, 536 F. 2d 1115, 1119 (6th Cir. 1976) supports plaintiffs RCFC 60(b)(3)
rights: [s]ince attorneys are officers of the court, their conduct, if dishonest, would
constitute fraud on the court.
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from burdensome discovery," it should not be used to prevent a


party from presenting its case. (citations omitted).
Bell, supra, at at 3; Citibank, N.A., v. Osorno, 2006 U.S. Dist. LEXIS 64883, 2 (S.D.N.Y.
2006) Plaintiffs declarations filed with this response contain requisite detail to support
continued discovery: if it appears from the nonmoving party's affidavits that the party
cannot present facts essential to justify the party's opposition, the Court may refuse to
order judgment or may order a continuance to permit additional discovery. Fed. R. Civ.
P. 56(f). Bell, et al., v. Federal Ins. Co., 2007 U.S. Dist. LEXIS 64020, 2 (D.MN. 2007);
Polk v. Local 16, Intl Union Bricklayers and Allied Craftsmen, 1995 U.S. App. LEXIS
9758, at 4 (6th Cir. 1995). DOJ cannot use truncated discovery as a basis to avoid
depositions. In Re: E. I. du Pont de Nemours, 918 F. Supp.at 1549.
V.

The evidence produced to date supports both the validity of Rule 60


misconduct theories and the continuation of discovery.
A. Documents produced to the Court in defendants privilege log
demonstrate clear Rule 60 misconduct by Civil Division in this matter.
Documents produced to the Court to date, referred to herein by DOJs Bates

Numbers, establish misconduct by DOJ violative of Rule 60(b)(3)s prohibitions of fraud


on the court, misrepresentation or misconduct. Those emails prove that DOJ conspired
to withhold threat information from the Court and demonstrate that attorney Harrington
violated 18 U.S.C. 1001(a) in making false statements to Judge Allegra and to OPR
investigators of no prior knowledge of Bacons attempted obstruction of justice. Those
pleadings are incorporated by reference, with relevant sections designated as follows:
Plaintiff Jay A. Dobyns May 27, 2015 Reply In Support of Motion to Enlarge
Page Limits and Response to Defendants Motion to Strike (No. 386).
II.

Plaintiff objects to redactions of evidence that establish that Civil


Division withheld evidence from the Court regarding allegations by
Christopher Trainor of threats to Trainor made by Charles Higman.
24

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DOJ_CIVIL00000509-510:
DOJ_CIVIL00000288-289
DOJ_CIVIL00000392
DOJ_CIVIL00000291-300
III.

Harrington misrepresented his knowledge of Bacons obstruction.


DOJ_CIVIL00000354-356
DOJ_CIVIL00000359-364

Plaintiff Jay A. Dobyns May 22, 2015 Notice of Objection to Defendants


May 12, 2015 and May 21, 2015 Claims of Inadvertent Disclosure (No. 384)
DOJ_CIVIL000000291-300 (Harrington makes false and deceptive statements to
federal investigators in violation of 18 U.S.C. 1001 (a);
DOJ_CIVIL00000430 (Niosi displays her venom for Trainor, an antipathy
consistent with her inability to recall Harringtons threats to Trainors career: Im
not going to stand for him taking another shot at me.).
DOJ_CIVIL00000445 (Niosi concedes: [t]he call demonstrates that Higman is
angry that Trainor issued a report that criticized Higmans work, i.e., motive)
DOJ_CIVIL0000491 (Snees email dated July 20, 2013, 11:51 AM)
DOJ_CIVIL0000497-498; DOJ_CIVIL0000497 (Emails to and from Jeanne
Davidson, getting her approval to withhold the threat information from Judge
Allegra).
B. The evidence produced to date supports the evidence of conspiracy to
withhold threat information and plaintiffs need to take depositions.
Exhibit C hereto contain evidence from defendants document production proving
DOJs successful attempt to pressure Trainor not to inform Judge Allegra of the threats.

Trainor email to ATF (DOJ_CIVIL000000479) states:


I am not satisfied with DOJs attempts to dissuade me from
what I have been advised to do by two separate attorneys I
have consulted.That is why I called DOJ tonight, as a
courtesy and to ask them to provide this information to the
judge so that I am not forced to.

Harrington and Bouman then brought ATF Assistant Director Michael Gleysteen
into their effort to contain the threat information (DOJ_CIVIL000000481-482).

Harrington and Bouman then jointly attempted to have Gleysteen dissuade


Trainor from revealing his information to the judge (DOJ_CIVIL000000484):

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Harrington: he [Trainor] should be instructed by an


appropriate superior not to contact the judge or make any
submission in the Dobyns case.

In his response to OPR questioning, Harrington wrote:


No attorney made any threat to dissuade Mr. Trainor from
contacting the court directly.

Harrington emailed his supervisors Bryant Snee and Donald Kinner


(DOJ_CIVIL0000092):
The strongest argument for disclosure is probably the fact
that Judge Allegra takes a broad view of what relates to the
case and what he should hear about. And if we go only part
way, do we run the risk that Judge Allegra thinks we have
not told him something that he considers to be important?
I am reconsidering whether we should perhaps say that
there were contacts between Trainor and Higman, that there
was a discussion about the fire investigation ROI We
could steer clear of the "threat" and issues about the
adequacy of ATFs response, which really have nothing to
do with our case.

As set forth in Exhibit C hereto, Harrington conceded that the Higman voicemail,
if a threat, constituted a crime (DOJ_CIVIL0000087):
A threat by Higman (if here had been one) would be a
criminal matter If there was some threat that was an
attempt to influence trial testimony, this would be a matter to
raise with the Court.

Also set forth in Exhibit C hereto, Snee expressed the seriousness of Higmans
conduct and that Judge Allegra would want to be informed (DOJ_CIVIL0000093):
What the best case which could be made that we should
bring it to the Courts attention? That witness X in this case
believes he has been threatened about his testimony in this
case by witness Y from this case. Arguably, that may be
relevant for the judge to know
Another way to look at it is - if you were in the judges shoes,
would you want to know of the situation? What if (heavens
26

Case 1:08-cv-00700-PEC Document 447 Filed 08/27/15 Page 38 of 62

forbid) Witness X actually harmed witness Y or family, would


we still say we had no duty to disclose to court?
Additionally, to what extent is our view of this matter
informed by our assessment that this is not a real threat? Is
that a proper subject for us to evaluate? Stated differently, if
we thought it was a truly real threat, would we adopt the
same approach?
After discussing Higmans threat, Snee then discussed attacking Trainor on the
stand to overcome claims of Higmans threat (DOJ_CIVIL000000484):
more aggressively cross-examine(ing) him to highlight
inadequate nature of his work; that he has personal interest
because his professional abilities/judgment/ competence are
at issue; personal bias in favor of Dobyns? Which is (sic)
better approach from an optics perspective[?]
Harrington emailed Davidson (DOJ_CIVIL0000497-498) and dismissively
described the topic of Higmans threat, failing even to mention the orange construction
cone that Trainor found in the tailpipe of his SUV at his home after receiving Higmans
voicemail. Nevertheless, despite the deficiencies in Harringtons disclosures, to
Davidson, Davidson had enough information in order to act. And yet, by email dated
July 21, 2013 (DOJ_CIVIL0000497), Davidson dismissed the Higmans threat against
Trainor and recommended against informing the Court:
The only part of this that could potentially be relevant is
Higmans criticism of Trainor for not interviewing him during
his investigation. That point is helpful to the extent Allegra is
influenced by the ROI. But that point probably would have
come out anyway. Good luck tomorrow.
These emails coordinate a no-threat mindset and are a cautious but deliberate
effort to overcome dissent among attorneys regarding disclosure of the threat
information to Judge Allegra. The emails document that ATFs Michael Gleysteen was
used to tamp down the threat with Trainor and to create a no threat declaration,
27

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drafted entirely by DOJ attorneys with no apparent input by Gleysteen, to serve the
needs of DOJs position. DOJ, the Office of Inspector General (OIG) and the Special
Master repeatedly focus on one statement from Trainor in his OIG interview conducted
more than a year following the threat events, for their conclusion there was no threat
and therefore no need for investigation or reporting, and a mid-stream email that
Higman might have been intoxicated. Those are two statement by Trainor taken out of
context and used to dismiss all of the complaints and threat notification by Trainor, a
matter which plaintiff would demonstrate from depositions and in closing argument.
What is clear is that Higman asked Trainor to interview him and then alter his
report of investigation. Such evidence tampering, coupled with intimidation and threats,
was required to be reported to the trial judge as obstruction of judicial proceedings
under 18 U.S.C. 1503 and 18 U.S.C. 1512:
Tampering with a witness, victim, or an informant; whoever
knowingly uses intimidation, threatens, or corruptly
persuades another person, or attempts to do so, or engages
in misleading conduct toward another person, with intent to,
(1) influence, delay, or prevent the testimony of any person
in an official proceeding; (B) alter, destroy, mutilate, or
conceal an object with intent to impair the objects integrity or
availability for use in an official proceeding.
Trainor withheld the threat information for a year in order to allow Judge Allegra
to file his opinion, and in that year, saw that Higman did not act on his threats. In the
interim, Trainors family suffered fear and anxiety, and the issue is what DOJ should
have done at the time, with what they knew then. By investigating those threats, Judge
Allegra and plaintiff would have determined if Civil Division (Harrington) had anything to
do with Higman making the call to Trainor, and DOJ (Harrington and Bouman) had
anything to do with ATF closing down the investigation without interviewing Higman.
28

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As for allegations about Valarie Bacon, attorneys Davidson, Kinner, Corrine Niosi
and P. Davis Oliver were made aware of the allegations by Harringtons March 21, 2013
email, 1:46 pm (DOJ_CIVIL00000354; response to plaintiffs counsels email with the
Subject: ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted
obstruction of justice; Dobyns v. U.S.; 08-700c, Importance: High, To: Davidson,
Kinner, Niosi and Oliver). Harrington was aware of Bacons attempted obstruction
before trial, as demonstrated in his email to Davidson. DOJ_CIVIL00000359-364):
Jeanne, this is not a new allegation. Additionally, assertions
about the re-opening of an ATF investigation are nonsense.
In response to plaintiffs counsels April 9, 2013 6:55 pm email, Subject: Scope
of defendant actors; Referral to OIA of attempted obstruction of justice by Valerie
Bacon; Dobyns v. U.S.; 08-700c (DOJ_CIVIL00000360-364), Harrington emailed to
Rachel Bouman, Niosi and Oliver, again pre-trial, on April 10, 2013, 10:23 pm
(DOJ_CIVIL00000359): Here is last nights e-mail from Mr. Reed. Is there an active
inquiry into Valarie Bacons attempts to obstruct justice as Mr. Reed alleges? If so, by
whom and what is its current status? Thanks.
Nevertheless, during in-chambers discussion and mid-trial on June 17, 2013,
Judge Allegra asked Harrington if allegations of Bacons statement had come up before
trial. Harrington denied any prior knowledge of Bacons attempted obstruction. In his
response to OPR, Harrington does not correct his misrepresentations to this court. He
thus re-affirmed his earlier false statement made in-chambers on June 17, 2013 to
Judge Allegra, he did not recall any such allegations regarding Valerie Bacon
(DOJ_CIVIL00000359). Harrington made several false statements to OPR, including:

29

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I have no specific recollection of actions taken upon receiving the March 21 and
April 9 2013 e-mails from Mr. Reed.
Falsifying information to OPR federal investigators is a violation of 18 U.S.C. 1001 (a).
The following is a summary of the documents found in Exhibit C, demonstrating a
concerted effort by Civil Division to withhold information and make material misrepresentations in violation of Rule 60.
Trainor believed that Higman threatened him

Far from watering down the nature of the threat to his family, and Trainor asked
that Gleysteen bring serious investigative attention to the threats. DOJ_CIVIL
0125.

Trainors ATF supervisor Cooper was supportive of such interviews of Higman,


but was blocked by supervisors. (DOJ_CIVIL 0125) ("Hey Chris- was hoping to
have more info for u tonight but unfortunately instead of moving fast to take this
to Arizona, the DADs and ADs have slowed it down and want to revisit in the
morning- not a good idea to me)"

ATFs Gleysteens response was continually inadequate, according to Trainor.


(DOJ_CIVIL 0125) (I told AD Gleysteen that I completely disagreed with the
reasoning behind the decision to not interview Higman.)

Trainors attorneys confirmed that Judge Allegra at least needed eventual


notification. (DOJ_CIVIL 0125)

Even DOJ initially called the voicemail a Threat. (DOJ_CIV 0521 Subject: FW:
Here is the recording of the threat; Attachments: HIGMAN Threat.m4a - Rachel
A. Bouman); (DOJ_CIVIL 0137 Please call it "Higman Message." Thanks.)

DOJ improperly influenced Trainors ATF Supervisor Michael Gleysteen to


conclude that no threat occurred:

Depositions are intended to establish that Bouman guided Gleysteen to his


conclusion of no threat. Bouman was an intermediary between DOJ and ATF
and getting Gleysteen on message and, plaintiff believes, played a role in ATF
closing the investigation of Higman without Higman being interviewed. Boumans
admission of DOJs influence on Gleysteens law enforcement conclusions for
DOJs purposes is documented. (DOJ_ATF1019 - From: Bouman, Rachel A. To:
Harrington, David; Niosi, Corinne Subject: Gleysteen declaration Attachments:

30

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Declaration of Michael Gleysteen 7-19-13 (Dobyns).docx I havent run this by


him yet, but does this serve our purpose?).

To that end, Rachel Bouman wrote Gleysteens declaration for him. (DOJ_CIVIL
0527 - I spoke with Michael this morning and am prepared to prepare a draft
declaration for him, but I can go up to his office and call you from there if you
want to speak with him directly.)

Other legal team members participated in draft the declaration for Michael
Gleysteen Gleysteen (DOJ_CIVIL 0534), Trainors ATF supervisor, to water
down the possible threat nature of Higmans call. (DOJ_CIVIL 0212; DOJ_ATF
0907 - From: Niosi, Corinne - Declaration of Michael Gleysteen 7-19-13
(Dobyns).docx I think this looks good and meets our needs. I have some
suggested edits, in redline.); (DOJ_CIV 0215) (From: Harrington, David (CIV),
Subject= RE: Declaration of Michael Gleysteen 7-19-13 (Dobyns).docx
Corinnes revisions look good. I made a few possible edits of my own)

The legal team knew that Judge Allegra would want the threat information, but
withheld it from him anyway.

DOJ_CIVIL 0092; DOJ_CIVIL 0081) As part of the freefall of objective


discussion, Harrington and his team knew that Judge Allegra would be upset if
the threats were withheld, and they conspired to do so anyway.

(DOJ_CIVIL 0087 - From: Harrington, David To: Snee, Bryant; Kinner, Donald
Cc: Niosi, Corinne Subject: RE: Higman Issue The strongest argument for
disclosure is probably the fact that Judge Allegra takes a broad view of what
relates to the case and what he should hear about.)

(DOJ_CIVIL 0089 And if we go only part way, do we run the risk that Judge
Allegra thinks we have not told him something that he considers to be
important?)

Niosi also knew that Judge Allegra would want the threat information.
(DOJ_CIVIL 0243 From Niosi, Corinne To Harrington, David Subject Fw:
Higman Issue I dont want to muddy it up but we need to consider Bryants
question about whether Allegra would want to know about this against the
backdrop of the Valarie Bacon thing and Trainors horse trading testimony.)

Bryant Snee also knew that Judge Allegra would deem it worthy of reporting.
(DOJ_CIVIL 0002); (DOJ_CIVIL 0939)

Various DOJ attorneys believed the threat allegations should be disclosed to


Judge Allegra:

31

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ATFs Chief counsel wanted to disclose the facts to Judge Allegra. (DOJ_CIVIL
0125) (David-- Our Chief Counsel would like us to file something with the court
on Monday.Thanks, Rachel)

DOJ_CIVIL 0232 (Attorney Niosi told Harrington that if Trainor reported the threat
in court, DOJ may need to disclose everything.)

(DOJ_CIVIL 0243) Attorneys Snee, Harrington and Niosi discussed discussed


that they were not qualified to assess threat risk and had been caught by Judge
Allegra in misconduct already (Additionally, to what extent is our view of this
matter informed by our assessment that this is not a real threat? Is that a proper
subject for us to evaluate? [.] What if (heavens forbid) Witness X actually
harmed witness Y or family, would we still say we had no duty to disclose to
court? We will have to flag this issue for Jeanne)

(DOJ_ATF 0959) (From: Gross, Charles R. To: Bouman, Rachel A. Subject: Re:
Chris Trainor Witness Issue in Dobyns Rachel: [.] my advice would be that
our attorneys bring this to the Courts attention on Monday.);

(DOJ_CIVIL 0085) Even Harrington began to express doubt about withholding


Higmans calls from Judge Allegra. (We could steer clear of the "threat" and
issues about the adequacy of ATFs response, which really have nothing to do
with our case.)

(DOJ_CIVIL 0087) And even Harrington emailed the trial team that Judge Allegra
would want to know the information: The strongest argument for disclosure is
probably the fact that Judge Allegra takes a broad view of what relates to the
case and what he should hear about.

(DOJ_CIVIL 0089) DOJs deliberations revealed doubts that should have been
resolved by reporting the threat to Judge Allegra. Harrington emailed the legal
team:
Rachel said that ATF thinks the "safer" course is to raise matters
affirmatively. ATF is still vague about what exactly they think should be
raised with the court. [.] And if we go only part way, do we run the risk
that Judge Allegra thinks we have not told him something that he
considers to be important?

Bouman continued to evidence doubt about withholding the threats. (DOJ_ATF


1079) and (DOJ_ATF 1040 - I will suggest that David file something this
weekend)

Jeanne Davidson was involved in the directive not to report the threats to Judge
Allegra. (DOJ_ATF 0965) (From: Gross, Charles R. - To: Bouman, Rachel A. Re:

32

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Higman Issue Ive known Jeanne Davidson for almost 20 years, and I trust her
judgment)

(DOJ_ATF 0965 On Jul 20, 2013, at 1:51 PM, "Bouman, Rachel A."
<RacheI.Bouman@atf.~ov> wrote: Ultimately, the decision will be made by
Jeanne Davidson [.] I also told David that the Judge is already suspicious of
us and we dont want to look that way again.)

Nevertheless, DOJ attorneys planned for every contingency in withholding the


information.

(DOJ_CIVIL 0241) (If he walks into the courtroom with a document in his hand,
then that will be a red flag.)

(DOJ_CIVIL 0061) Harrington: and then we tell the Court that Trainor has his
own personal complaint about ATF handling of a supposed threat against him,
that we have looked at it, that he needs to address it internally at ATF (And
DOJ_CIVIL 0068)

DOJs Bench Briefing (DOJ_CIVIL 0251) to be filed with the Court if Trainor
disclosed the threat allegations, contained false statements and falls short of full
and accurate: Similarly, during the call, Mr. Higman did not attempt to influence
SA Trainors trial testimony. Mr. Higman merely requested that he be
interviewed; SA Trainor said that request would not be granted. To the contrary,
Higman asked that Trainor interview Higman and alter his report of investigation
afterwards.

Offline communications occurred, which may have discussed the possibility of


outreach to Higman, either before or after Higmans calls to or from Trainor.
Without depositions, plaintiff will never know what was discussed in those
conferences with Harrington. (DOJ_ATF 0930) (From: Harrington, David (CIV)
To: Bouman, Rachel A. Cc: Niosi, Corinne (CIV); Subject: RE: We need to talk.
When are you available?)

VI.

The Court should allow plaintiff to take necessary depositions.


A. The conduct of depositions is required before Rule 60(b)(3) discovery
can be considered complete and summary termination, appropriate.
i.

The Special Master already ordered, on the parties stipulation,


that plaintiff has the right to take depositions.

A party may take another party's duly noticed deposition in person as a matter of
right. Fed. R Civ. P. 30. Davis v. Calvin, et al., 2008 U.S. Dist. Lexis 116529, at 3
33

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(E.D.Ca. 2008); Cleveland Demolition Company, Inc., v. Azcon Scrap Corporation, et


al., 1986 U.S. Dist. LEXIS 30954, at 3 (E.D.VA. 1986). The Special Master heard
argument regarding depositions, including defendants agreement to permit five
depositions, and ruled that plaintiff is entitled to take depositions when document
discovery is complete. HSBC Bank USA, Natl Assoc., et al., v. Resh, et al., 2014 U.S.
Dist. LEXIS 16088, at 3 (S.D.W.VA. Hunt. Div. 2014). Because the Special Master did
not have grounds to vacate his prior order permitting eight depositions, and defendant
did not move to vacate the order, depositions should proceed. See Haldeman, et al., v.
Golden, et al., 2008 U.S. Dist. LEXIS 35327, at 11-12 (D.HI. 2008).
ii.

Summary termination of Rule 60(b)(3) proceedings is facially


improper where plaintiff has not had the opportunity to take any
witness depositions whatsoever.

Federal common law is clear that summary judgment should not be entered until
discovery is complete: First, the motion was clearly premature. It was filed before
discovery was complete and even before plaintiffs were able to depose Hopkins. On this
basis alone, the motion must be denied. Dibella, et al., v. Hopkins, 2002 U.S. Dist.
Lexis 19844, at 2 (S.D.N.Y. 2002) (citing See Hellstrom v. U.S. Dep't of Veteran Affairs,
201 F.3d 94, 97 (2d Cir. 2000); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d
Cir. 1995); Fed. R. Civ. P. 56(f); Adams v. Richardson, 351 F. Supp. 636, 637 (D.D.C.
1972) (In an earlier proceeding, defendants' motion to dismiss or for summary
judgment was denied in order to allow plaintiffs to engage in and complete discovery.
Such discovery, inter alia, included a very lengthy deposition of defendant Pottinger.)
Deposition allowance is a core prerequisite to entry of summary judgment. First
Pacific Bancorp, Inc., supra, at 545; Irani v. Palmetto Health, et al., 2015 U.S. Dist.

34

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LEXIS 81104, at 8 (D.S.C. 2015). The D.C. Circuit denies summary judgment if
discovery has been inadequate.12 Bynum, et al., v. District of Columbia, 215 F.R.D. 1, 45 (D.D.C. 2003); Commodore-Mensah v. Delta Air Lines, Inc., 842 F. Supp. 2d 50, 53
(D.D.C. 2012). Similarly, the Court of Federal Claims denies summary judgment
motions if not enough evidence has emerged from discovery. Mundy et al., v. United
States, 22 Cl. Ct. 33, 36 (1990); International Fidelity Ins. Co., 27 Fed. Cl. at 111;
Marshburn v. United States, 20 Cl. Ct. 706, 709 (1990).
iii.

Plaintiff requires depositions to prove attorney fraud on the court,


or misconduct or misrepresentation under Rule 60.

Plaintiff Dobyns right to take depositions is essential to his ability to avoid entry
of summary judgment. BNSF Railway Company v. L.B. Foster Company, 2012 U.S.
Dist. LEXIS 117237, 1-2 (D.NE. 2012). The district court for Nebraska ruled that a
respondant to a summary judgment motion is entitled to take necessary depositions:
BNSF has established that it cannot present facts essential to its opposition to Foster's
summary judgment motion without having the opportunity to depose Foster's corporate
designee and Sidney Shue [.] Id. at 2. Federal common law is replete with instances
of federal courts denying entry of summary judgment so that respondents can take
critical depositions. Cardinal Health, Inc., et al., v. Delivery Specialists, Inc., 2011 U.S.
Dist. LEXIS 29891, at 4 (S.D.FL. 2011) (After completion of Mr. Orie's deposition, the
Defendant may file a supplement to its Opposition to the Plaintiffs' Motion for Summary
12

Hidalgo v. Winding Road Leasing Corp., et al., 2013 U.S. Dist. Lexis 66623, 5
(E.D.N.Y. 2013) (Defendants' motion for summary judgment is denied [.] parties are
directed to complete expert discovery); McGinnis v. New York University Medical
Center, 2012 U.S. Dist. Lexis 9537, at 3 (S.D.N.Y. 2012) (where there is a likelihood of
further discoverythe Court dismisses without prejudice Defendant's motion for
summary judgment (citations omitted)).; Riverdale Mills Corp., v. United States et al.,
337 F. Supp. 2d 247, 250 (D.MA. Cen. Div. 2004).
35

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Judgment); Gardias v. The California State U., et al., 2010 U.S. Dist. LEXIS 97575, at 2
(N.D.CA San Jose Div. 2010) (Gardias shall appear for his deposition [.] The
deadline for hearing summary judgment motions is re-set); Harris v. NCO Financial
Systems, et al., 2009 U.S. Dist. Lexis 15037, 3 (D.C.E.D.PA. 2009) (Discovery []
including plaintiff's deposition, is not complete. Upon completion, summary judgment
may again be moved.)
iv.

Attorney depositions are appropriate under these circumstances.

Depositions of attorneys should be allowed as necessary before summary


judgment is considered. Nielsen, et al., v. TIG Insurance Co., 2006 U.S. Dist. LEXIS
49002, at 15 (D.MT. Miss.Div. 2006) (Defendant filed its summary judgment motion
[.] but more importantly it filed its opposition to Plaintiff's January 27 motion [.]
supported by the depositions of the above attorneys involved in the underlying action.).
B. Any doubts should be resolved in favor of permitting plaintiff to take the
previously-ordered depositions.
The Court should resolve any doubts in favor of permitting the plaintiff to take the
ordered depositions before summarily terminating this Rule 60 proceeding. Murray v.
Dillard Paper Co., et al., 1999 U.S. Dist. LEXIS 22630, 4 (E.D.VA. 1999); see Marion v.
City of Philadelphia et al., 1998 U.S. Dist. LEXIS 11579, 3 (E.D.PA. 1998) (I will
dismiss defendant's motion without prejudice [] so that the depositions of the city
employee defendants may be completed.); Neeb-Kearney & Co., Inc. v. Dept. of Labor,
et al., 1992 U.S. Dist. LEXIS 7123, 2 (E.D.LA. 1992) (to resolve those cross-motions
for summary judgment, the parties shall complete depositions).
In the face of summary judgment, federal law requires flexible and broad
evidentiary relevance determinations in favor of the conduct of depositions. Quaker
36

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Chair Corporation v. Litton Business Systems, Inc., 71 F.R.D. 527, 530-531 (S.D.N.Y.
1976). The Court should not adopt the Special Master Reports termination of
proceedings where the Report illogically extrapolates from half-completed discovery:
[D]efendant's opposition rests merely upon the asserted futility
of further discovery [] these contentions are without merit. []
It is precisely for the purpose of testing the truth of such statements that the opportunity for live cross-examination is provided. [.] it seems inappropriate to deny plaintiff the opportunity to depose Messrs. Schneiderman, Tischio, and Silver.
Id. at 531-532. The Quaker Chair decision supports a plaintiff such as Jay Dobyns, who
has no access to witnesses in order to file Rule 56(f) affidavits. Id. at 533-534. (Plaintiff
must complete its depositions.).
C. In the alternative to depositions, an evidentiary hearing to determine
fraud upon the court, misrepresentation or other Rule 60(b)(3)
misconduct is the only appropriate option.
Plaintiffs request to take depositions is particularly appropriate in light of the
normal conduct of an evidentiary hearing for Rule 60(b)(3) allegations of fraud. Charter
Practices Intl, v. Robb, 2015 U.S. Dist. LEXIS 34111, 2 (D.CT. 2015); In Re: E. I. du
Pont de Nemours and Company, 918 F. Supp. at 1540 (This Court has the power, the
authority, and the jurisdiction to investigate allegations of a fraud on the Court and a
fraud on the judicial system); Martin v. Automobili Lamborghini Exclusive, Inc., 307
F.3d 1332, 1335 (11th Cir. 2002). Termination of discovery should lead to an evidentiary
hearing as an unavoidable alternative, unless good cause exists. Zimmerman v. Poly
Prep Country Day School, 2012 US Dist. LEXS 78816 26-27 (EDNY 2012).

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VII.

With respect to the Courts review of evidence, plaintiff should receive


all favorable inferences from the evidence produced to date before
summary termination of these Rule 60(b)(3) proceedings can occur.

A. Rule 56 provides guidance by construing all evidence in favor of


plaintiff, given plaintiffs resemblance to a party responding to a
summary judgment motion.
The Court is guided by the common law to view evidence to date in plaintiffs
favor under a Rule 56 analysis: [w]e review the district court's grant of summary
judgment de novo, examining the record in the light most favorable to Koger. Koger v.
Bryan, 523 F.3d 789, 796 (7th Cir. 2008), citing Peate v. McCann, 294 F.3d 879, 882
(7th Cir. 2002); Wong, supra at 4 (court must draw all reasonable inferences on behalf
of nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587); see also Posey v.
Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) ("the evidence
of [the nonmovant] is to be believed); Riverdale Mills Corp., v. U.S., et al., 337 F. Supp.
2d 247, 252 (D.MA. Cen. Div. 2004) ([t]he Court must view the entire record in the light
most hospitable to the non-moving party and indulge all reasonable inferences in that
party's favor.) (citing O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993)); Evans,
et al, v. Port Authority Trans-Hudson Corp., et al., 2003 U.S. Dist. LEXIS 28259, at 10
(D.N.J. 2009) (In deciding a motion for summary judgment, a court must view the facts
in the light most favorable to the nonmoving party and must resolve any reasonable
doubt as to the existence of a genuine issue of fact against the moving party.) (citing
Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982)); Marion, supra, at 3 .

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B. Similarly, federal common law of Rule 56 dissuades the Court from


weighing evidence to determine whether to summarily terminate this
Rule 60(b)(3) proceeding.
The Court should not assess credibility of evidence in the middle of discovery.
Haldeman, supra, at 5 (The court does not make credibility determinations or weigh
conflicting evidence at the summary judgment stage. Id.); White v. Tapella, 876 F.
Supp. 2d 58, 64 (D.D.C. 2012); in accord; Nielsen, supra at 5. Despite that rule, the
Special Master Report disregards the non-deposition statements of Trainor and ignores
the fact that no statements or depositions of Agent Machonis or attorney Onyema were
taken, while accepting in total the self-serving and self-preserving statements of
attorneys Harrington and Niosi.13 These mid-discovery credibility assessments are
expressly discouraged by the federal common law of Rule 56:
"In considering a motion for summary judgment, the court
may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most
favorable to the non-moving party." Freeman v. Arpaio, 125
F.3d 732, 735 (9th Cir.1997).
Dietrick v. Securitas Security Serv. USA, 50 F. Supp. 3d 1265, 1268 (N.D.CA. 2014);
Hidalgo v. Winding Road Leasing Corp., 2013 U.S. Dist. Lexis 66623, 2 (EDNY 2013).
VIII.

The Courts assessment of sanctions based on Rule 60(b)(3) fraud,


misrepresentation or other misconduct by DOJ attorneys would alter or
amend the August 28, 2014 Final Judgment and thereby satisfy even the
Special Masters limited definition of fraud.

A. The imposition of sanctions is an appropriate response to defense


counsels misconduct, if plaintiffs allegations are proven.

13

There is no evidence that attorneys Harrington and Niosi were sworn under oath
before giving their statements to OPR investigators, similar to the Fifth Circuits rejection
of unsworn, self-serving attorney statements in United States v. Bowen, supra.
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i.

The Court can vacate the Final Judgment and issue sanctions
against the Justice Department for the alleged fraud on the court,
misrepresentation or other misconduct.

The trial judge may vacate the August 28, 2014 Judgment and alter and amend it
under Rule 60 to order sanctions against DOJ, with or without payment to plaintiff. See
Hartman, supra at 37; Florida Evergreen Foliage, 135 F. Supp. 2d at 1287 (federal
court retains inherent authority to set aside a federal judgment for "fraud on the court,"
[] sanctions and other criminal penalties can be imposed for criminal contempt and
other litigation-related crimes.); In Re: Rafail Theokary, 468 B.R. 729, 749 (Bk. E.D.PA.
2012) (citing Chambers, 501 U.S. at 44, courts have inherent power to set aside their
own judgments upon finding that they were fraudulently obtained.).
Federal courts also have inherent power to sanction misconduct in proceedings.
Martin, et al., v. Automobili Lamborghini Exclusive, Inc., et al., 307 F.3d 1332, 13361337 (11th Cir. 2002). The inherent power of courts to sanction misconduct has been
held to apply to attempts, successful and otherwise, to commit fraud upon the court.
Videojet Systems Intl, Inc., v. Eagle Inks, Inc. et al., 2000 U.S. App. LEXIS 31337, at 23 (Fed. Cir. 2000); In Re: E. I. du Pont de Nemours and Co., 918 F. Supp. at 1540; in
accord, Peter Kiewit Sons', Inc., v. Wall Street Equity Group, Inc., et al., 2012 U.S. Dist.
LEXIS 69577, at 14 (D.NE. 2012) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44
(1991); Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 280 (8th Cir. 1995).
This inherent power to control conduct and secure proper respect for truth and
candor is a broad authority and intrinsic to the fabric of integrity in the courtroom 14:
14

[U]nder its inherent authority, the Court may do whatever is reasonably necessary to
deter abuse of the judicial process and assure a level playing field for all litigants,
Charter Practices International, supra at 2.

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Neither statute nor the Federal Rules of Civil Procedure


supplant, however, the implicit, inherent power of the court -perhaps the mother source of the authority and responsibility of
the courts to control the conduct of litigation -- to restrain
excesses of the participants and to preserve the integrity of the
judicial process. Chambers, 501 U.S. at 46; Sanctions, Chapter
4, Inherent Power of Courts, 4.01-02.
Derzack, et al., v. County of Allegheny, et al., 173 F.R.D. 400, 411 (W.D.PA. 1996); in
accord, Ian Owen Sharpe et al., v. United States, 112 Fed. Cl. 468, 473 (Cl. Ct. 2013).
The court's inherent power is broad and can be called upon not only to fill-in the
interstices between particular rules of conduct, but also may be referred to in addition to
said rules where appropriate. Derzack, 173 F.R.D. at 412. Whatever limitation the
Court perceives in its power to effectuate a just result in light of DOJ misconduct is
overcome by an inherent judicial authority to keep the courtroom a sacred legal place.15
ii.

Rule 60(b)(3) findings of misrepresentations or misconduct also


permit the Court to issue sanctions.

If a partys conduct did not amount to fraud [on the court], courts may use
sanctions in cases involving bad faith that cannot be otherwise reached by rules or
statutes. Takeda Chemical Industries, Ltd., et al., v. Mylan Laboratories, Inc., et al.,
549 F.3d 1381, 1391 (Fed.Cir. 2008) (citing Chambers, 501 U.S. at 46). That

15

But if in the informed discretion of the court, . . . the Rules are [not] up to the task, the

court may safely rely on its inherent power." Sharpe, 112 Fed. Cl. at 474. Judges of the
Court of Federal Claims enjoy the same rights to police their courtrooms as any other
federal judge, regardless of the announced rules of conduct. Brooker v. U.S., 107 Fed.
Cl. 52, 56 (Cl. Ct. 2012). A court's rules do not displace its inherent power to impose
sanctions for bad-faith conduct. Sellers, et al., v. U.S., 110 Fed. Cl. 62, 67-68 (Cl. Ct.
2013) (citing Chambers, 501 U.S. at 46.); in accord Fellheimer, Eichen & Braverman,
P.C. v. Charter Technologies, Inc., 57 F.3d 1215, 1224 (3d Cir. 1995) ("advent of Rule
11 and the other statutory sanctions did not eviscerate the courts' inherent power to
sanction").

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determination lies within the discretion of the trial judge, who is in the best position to
know how severely [a party's] misconduct has affected the litigation." Takeda Chemical
Industries, Ltd., et al., v. Mylan Laboratories, Inc., et al., 549 F.3d 1381, 1390-1391
(Fed.Cir. 2008); Heath v. Walters, 1998 U.S. App. LEXIS 18263, at 4 (7th Cir. 1998).
This inherent ability is a core part of the Court of Federal Claims need to
regulate its courtroom and the participation of DOJ attorneys who appear in every case.
Danny Sellers et al., v. United States, 110 Fed. Cl. 62, 67 (Cl. Ct. 2013) (The court has
"inherent powers enabling it to manage its cases and courtroom effectively and to
ensure obedience to its orders." Pac. Gas & Electric Co. v. United States (PG&E), 82
Fed. Cl. 474, 480 (2008); see In re Bailey, 182 F.3d 860, 864 (Fed. Cir. 1999).
The Court of Federal Claims has been on point in punishing attempted fraud
upon the court: only the inherent power could reach an entire course of conduct that
evidenced bad faith and an attempt to perpetrate a fraud on the court". Sharpe, 112
Fed. Cl. at 479; in accord, Emma C., et al., v. Eastin, et. al., 2001 U.S. Dist. Lexis
16119, 3 (N.D.Ca. 2001) (Courts also have the inherent power to impose sanctions for
abusive litigation practices in any proceeding in federal district court.) (citing Chambers
v. NASCO, Inc., 501 U.S. 32 (1991); F.J. Hanshaw Enter., Inc. v. Emerald Dev., Inc.,
244 F.3d 1128, 1136 (9th Cir. 2001); Ian Owen Sharpe et al., v. U.S., 112 Fed. Cl. 468,
480 (Cl. Ct. 2013) (plaintiffs have demonstrated "conduct which abuses the judicial
process. [.] Such conduct is the proper subject of an exercise of this court's
discretion to fashion an appropriate sanction pursuant to its inherent power.").
The exercise of the inherent power of the court to police and deter misconduct is
not merely an option but an obligation of the Court to exercise:

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The court's obligation is to protect not only litigants who


may suffer from abusive litigation practices of their
adversaries, but also to promote the proper function of a fair
and effective judicial system which, while it is adversarial,
need not also be callous, uncivil, sneaky or booby-trapped.
When it becomes so, the courts must act decisively.
Derzack, 173 F.R.D. at 411. The Special Master Report abdicates that duty.
iii.

Judge Allegra would likely have tacked to the opposite of the Special
Masters deference to the Justice Departments internal evaluations
about what types of threat allegations were required to be reported.

DOJ cannot decide the validity of Higmans threat or whether to deny to Judge
Allegra the ability to test the Higmans credibility and criminality. That is the law:
No party, be it an individual or a corporation, can unilaterally
decide the evidence. Put in layperson's terms, DuPont
cheated. And it cheated consciously, deliberately and with
purpose. DuPont has committed a fraud on this Court, and
this Court concludes that DuPont should be, indeed must be,
severely sanctioned if the integrity of the Court system is to
be preserved.
In Re: E. I. du Pont de Nemours, 918 F. Supp. at 1556. If the words attempted to are
added to the quotation, and if depositions prove that Harrington assisted Higman to
intimidate or cover up threat to Trainor, then DOJ can be substituted for DuPont in that
excoriating language.16 DOJs knowledge that Trainor testifed while sitting with
documentation of Higmans threat is particularly odious to the integrity of proceedings:
[I]f DuPont is to be believed, it caused and allowed that data
and those documents, or part of them, to sit undisclosed in a
box in the courtroom.[.] Were it not for Petitioners having
discovered the existence of that data and those documents

16

Deterrence is a constant theme for attempted fraud on the court. In Re: E. I. du


Pont de Nemours, 918 F. Supp. at 1557. Hartman, supra at 42 (We are protective of
the integrity of our judicial process and concerned about deterrence. We are "entitled to
send a message, loud and clear." Aoude v. Mobil Oil Corp., supra at 1122.)
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and having brought them in for this Court to review, DuPont's


fraud on this Court would have gone undiscovered.
In Re: E. I. du Pont de Nemours and Co., 918 F. Supp. at 1554.
Denying Judge Allegra the ability to investigate threats by Higman and DOJ, and
Civil Divisions possible involvement in Higmans threat, interfered with Judge Allegras
ability to police his courtroom17 and issue sanctions.18 In Re: E. I. du Pont de Nemours,
918 F. Supp. at 1555. That compromise of judicial procedure is a fraud on the court.19
B. Court-imposed sanctions payments can be directed to the plaintiff.
While Rule 60, in order to alter or amend the Judgment, does not require that
plaintiff receive an additur to his damages award or a direct payment of sanctions
entered against DOJ, nevertheless, that option is within the trial judges discretion.
17

Fraud on the Court is a fraud that harms the integrity of the


judicial process. Standard Oil Co. of Cal. v. United States, 429
U.S. 17, 97 S. Ct. 31, 50 L. Ed. 2d 21 (1976); Hazel-Atlas
Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245, 64 S. Ct.
997, 88 L. Ed. 1250, 1944 Dec. Comm'r Pat. 675 (1944).
Hartman, supra at 30.
18

As the Court of Appeals for the Ninth Circuit said in Brandt


v. Hickel, 427 F.2d 53, 57 (9th Cir. 1970) (also quoted in
Heckler v. Comty. Health Servs., Inc., supra at 61 n.13), "To
say to these appellants, 'The joke is on you. You shouldn't
have trusted us,' is hardly worthy of our great Government."
Hartman, supra, at 28.
Civil Divisions attorneys feigned confusion about Judge Allegras expectations that
they would report threats on a witness continued the fraud on the court:
19

This Court gives no credence to DuPont's arguments that the


Court's orders did not encompass the Alta data and documents,
or that those orders were vague, or that DuPont reasonably
misunderstood the orders. In fact, those arguments seem little
more than a continuation of the fraud on this Court.
In Re: E. I. du Pont de Nemours and Co., 918 F. Supp. at 1554.
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In Re: E. I. du Pont de Nemours and Co., 918 F. Supp. at 1558. A sanctions payment
to plaintiff, if ordered by the trial judge, would clearly alter or amend the Final Judgment.
The costs involved even just in this proceeding makes such a directed payment
to plaintiff, appropriate.20 Zimmerman, supra at 25. Plaintiff has acted as much on the
Courts behalf as his own in gathering evidence of DOJ misconduct, and yet, on the
brink of proving potentially stunning breaches of ethics, the Special Master may cut off
processes described in the February 23, 2015 order and December 1, 2014 Opinion.
IX.

The species of judicially-intrinsic fraud known as fraud on the court


does not require proof of prejudice to plaintiff or proof of an altered trial
outcome in order to satisfy Rule 60(b)(3).
A. Mere compromise of the integrity of judicial proceedings due to attorney
or party misconduct is sufficient to constitute fraud on the court.
To the contrary of the Special Masters interpretation of the Hazel-Atlas Glass

decision, the focus is not on prejudice to plaintiff21 but on the integrity of proceedings:
In Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S.
238, 64 S. Ct. 997, 88 L. Ed. 1250, 1944 Dec. Comm'r Pat.
675 (1944), the Supreme Court explained that the inquiry
into whether a judgment should be set aside for fraud on the
court focuses not so much on whether the alleged fraud
prejudiced the opposing party but on whether the alleged
fraud harms the integrity of the judicial process. The
20

The In Re: Rafail Theokary decision supports an award of sanctions in favor of


plaintiff merely for the time involved in the Rule 60 proceeding. In Re: Rafail Theokary,
468 B.R. at 750.
21

Nevertheless, where important, discoverable information is intentionally withheld from


a party and from the court, prejudice to a litigant can be presumed. In Re: E. I. du Pont
de Nemours and Co., 918 F. Supp. at 1550. The In Re: E.I. du Pont Court found: a
rebuttable presumption that the suppressed information and evidence would have led to
other admissible evidence and that both the suppressed information and other evidence
which may have been discovered would have been adverse to DuPont. In Re: E. I. du
Pont de Nemours and Co., 918 F. Supp. at 1553.
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misconduct of McWade and Sims was a fraud on the Court


because it harmed the integrity of the judicial process.
Hartman, supra at 41. "Fraud on the court occurs when the misconduct harms the
integrity of the judicial process, regardless of whether the opposing party is prejudiced.
Hartman, supra at 29 (citing Alexander v. Robertson, 882 F.2d at 424); Id. at 31 ([t]he
Court of Appeals made it clear in Dixon V that entitlement to relief from a fraud on the
court does not require a showing of prejudice.) Federal common law finds that merely
an attempt to pervert judicial proceedings constitutes fraud on the court:
One cannot argue that there was no prejudice because the
scheme did not succeed. [.] Equally, if not more significant is
the prejudice posed by the fraud both to the integrity of legal
system and the public interest. Derzack, 173 F.R.D. at 416.
In Re: Rafail Theokary, 468 B.R. 729, 750-751 (Bk. E.D.PA. 2012).
B. An attorneys violation of his code of conduct is a fraud upon the court.
i.

Lawyers must act with honor as officers of the court at all times.

Attorneys must act with the highest ethics and candor to the tribunal as officers of
the court: lawyers are expected to act in good faith, follow the rules and do their duty as
officers of the court seeking the truth. In Re: E. I. du Pont de Nemours and Co., 918 F.
Supp. at 1542 (citing C.A. v. Cincinnati Milacron Co., 799 F.2d 1510, 1521-23 (11th Cir.
1986).22 Justice Department attorneys in particular are held to the highest standards:
[T]he Supreme Court [] recognized that citizens have an
interest in "some minimum standard of decency, honor, and
The courts [.] must depend on their officers, the lawyers,
to keep faith with their primary duty to the court as its officers
[.] Counsel should not be allowed to "sell out" to their
clients. (citations omitted)
22

In Re: E. I. du Pont de Nemours and Co., 918 F. Supp. at 1543.

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reliability in their dealings with their Government", see


Heckler v. Comty. Health Servs., Inc., 467 U.S. 51, 61, 104
S. Ct. 2218, 81 L. Ed. 2d 42 (1984) [.]
Hartman, et al., v. Commissioner of Internal Revenue, T.C. Memo 2008-124; 2008 Tax
Ct. Memo Lexis 126, at 28 (U.S. Tax Ct. 2008); St. Regis Paper Co. v. United States,
368 U.S. 208, 229, 82 S. Ct. 289, 7 L. Ed. 2d 240 (1961) ("It is no less good morals and
good law that the Government should turn square corners in dealing with the people
than that the people should turn square corners in dealing with their Government").
ii.

Any departure from that standard of high moral conduct for


lawyers works a fraud upon the court under Rule 60(b)(3).

The federal common law governing attorney misconduct is clear: violation of


attorney canons of ethics and court officer expectations is a fraud upon the court:
An attorney's "loyalty to the Court, as an officer thereof,
demands integrity and honest dealing with the Court. And
when he departs from that standard in the conduct of a case
he perpetrates a fraud upon the Court." Kupferman v.
Consolidated Research & Manufacturing Corp., 459 F.2d
1072, 1078 (2d Cir.1972) [citing 7 Moore, Federal Practice,
Par. 60.33 at 513]. Fraud on the court is a "species of fraud
which does or attempts to, subvert the integrity of the court
itself...." 7 Moore's Federal Practice P 60.33 at 515 (1971
ed.) See Serzysko v. Chase Manhattan Bank, 461 F.2d 699,
702 (2d Cir.1972). An attorney may commit fraud on the
court not only through misrepresentation, but also through
omission. [.] "The very temple of justice [is] defiled."
Universal Oil Products v. Root Refining Co., 328 U.S. 575,
580, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447 (1946).
In re: Enrique Antonio Ocon, 2007 Bankr. LEXIS 947, 4 (Bk. S.D.N.Y. Miami Div. 2007).
The court should punish misconduct where government attorneys control the
proof, such as DOJs productions regarding communications with and about Higman:
Brown's offense was committed within the sanctity of the court
itself. The violation here is particularly insidious because [.]

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[t]he information needed to prove such assertions false is


peculiarly within the hands of the government.
United States v. Cortina, 630 F.2d 1207, 1216 (7th Cir. 1980). The Seventh Circuit in
Cortina urged federal courts to deter attorneys who withhold information relevant to a
judges ability to police a courtroom: it is that truth-finding function itself which has been
corrupted, not because of suppression, but because of the lies told to the magistrate.
Id. at 1217. The court is well within its discretion to consider the absence of the Justice
Departments remorse for its intimidation of witnesses such as Trainor: [d]efendants
then attempted to explain away their patently false and repeated statements from
multiple sources by stating they were simply "mistaken." Peter Kiewit Sons', Inc., supra
at 16; Universal Cooperative, Inc. v. Tribal Co-operative Marketing Development
Federation of India, Ltd., 45 F.3d 1194, 1196 (8th Cir. 1995). This Rule 60 proceeding
is critical to harnessing DOJ misconduct by penalizing the act of lying to a federal judge.
C. A mere attempt by the United States Department of Justice to engage in
attorney misconduct towards the Court constitutes a fraud on the court.
Civil Divisions encounters with ATF agents of great integrity such as Trainor and
Thomas Atteberry do not spare Civil Division from the repercussions for attempted
witness intimidation and fraud on the court23, or if discovery establishes it, from
encouraging Higmans threat to Trainor.24 To establish fraud on the court, it is
Trainors agreement to wait to report the threats to the court does not impact the
courts ability or need to investigate Civil Divisions attempted fraud. See In Re: E. I. du
Pont de Nemours and Co., 918 F. Supp. at 1551.
23

24

[W]here an attorney encourages or participates in the


fabrication of facts before a court, the courts have generally
found that this amounts to a fraud on the court. See, e.g.,
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238,
64 S. Ct. 997, 88 L. Ed. 1250 (1944) [.].
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necessary [only] to show an unconscionable plan or scheme which is designed to


improperly influence the court in its decision. Rozier v. Ford Motor Co., 573 F.2d 1332,
1338 (5th Cir. 1978) (quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960)).
(bracketed material added); Videojet Systems Intl., Inc., supra at 2 (The district court
granted Videojet's motion for a default judgment, noting that Eagle had engaged in a
concerted extensive attempt to commit a fraud on the court.")
The attempt at misconduct is what matters, not the outcome25, i.e., wrong-doers
lacking compelling gravitas to intimidate ethical witnesses should not escape sanctions.
Fraud on the court requires a party to "sentiently set in motion some unconscionable
scheme calculated to interfere with the judicial system's ability impartially to adjudicate a
matter by . . . unfairly hampering the presentation of the opposing party's claim or
defense." Zimmerman, supra, at 19 (citing Passlogix, Inc. v. 2FA Tech., LLC, 708 F.
Supp. 2d 378, 393 (S.D.N.Y. 2010); see Rezende v. Citgroup Global Markets, Inc., No.
09 CV 9392, 2011 U.S. Dist. LEXIS 45475, 2011 WL 1584603, at *4 (S.D.N.Y. Apr. 27,
2011); Charter Practices Intl. v. Robb, 2015 U.S. Dist. LEXIS 34111, at 2 (D.CT. 2015).
Civil Divisions attempt to taint proceedings, if proven, so as to deny to Judge
Allegra an opportunity to investigate the Higman threats constitutes a fraud on the court:
In analyzing the term "fraud upon the court," the Second
Circuit, citing Moore's Federal Practice, stated that the
"concept should 'embrace only that species of fraud which
does or attempts to, defile the court itself, or is a fraud
Cleveland Demolition Company, Inc., supra, at 3 (emphasis added).
25

Fraud on the court includes unsuccessful attempts to prejudice proceedings.


Cerruti 1881 S.A. v. Cerruti, Inc., 169 F.R.D. 573, 583-84 (S.D.N.Y. 1996) (imposing
sanction of default judgment against the defendants based on defendants' [.]
fabrication of evidence central to the case, despite the fact that defendants withdrew the
documents after falsity had been detected).
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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.'"
Kupferman v. Consolidated Research & Mfg. Corp., 459
F.2d 1072, 1078 (2d Cir. 1972) (quoting 7 Moore, Federal
Practice 60.33 at 515 (1971 ed.));
Zimmerman, supra at 19 (emphasis added); Florida Evergreen Foliage, 135 F. Supp. 2d
at 1287 (fraud on the court defined as that species of fraud which does or attempts to,
defile the court itself ) (citing ESM Group, Inc., 835 F.2d at 273 and Travelers
Indemnity Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985) (emphasis added).
The bad faith conduct that plaintiff alleges DOJ attorneys undertook, even if
unsuccessful, (1) during meetings with Trainor and possibly Higman, (2) by misleading
Judge Allegra, and (3) conspiring outside of court, supports a finding of fraud on the
court: [the] inherent power of court reaches both conduct before the court and beyond
the court's confines, and may properly be invoked to sanction willful bad-faith conduct
committed in an attempt to perpetrate fraud on the court. Derzack, 173 F.R.D. at 412;
In Re: Rafail Theokary, 468 B.R. at 740 (Debtor attempted to commit a fraud upon the
court by knowingly and in bad faith offering this evidence under false pretenses.);
Emma C., et al., v. Eastin, et. al., 2001 U.S. Dist. Lexis 16119, at 3 (N.D.Ca. 2001).
CONCLUSION
For the foregoing reasons, plaintiff Jay Dobyns respectfully requests that the
Court allow the conduct of depositions, hearing and final briefing in this proceeding.
DATED this 27th day of August, 2015.
/s/ James B. Reed
BAIRD WILLIAMS & GREER, LLP
6225 North 24th Street, Suite 125
Phoenix, Arizona 85016
Attorneys for Plaintiff Jay Anthony Dobyns
50

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that, on August 27, 2015, a copy of the
foregoing Plaintiff Jay A. Dobyns Objection to the Special Masters Report and
Recommendation was served on counsel for Defendant electronically to Robert
Kirschman, Civil Division, Commercial Litigation Branch, United States Department of
Justice, PO Box 480, Ben Franklin Station, Washington DC 20005.

/s/ James B. Reed

51