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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

JAY ANTHONY DOBYNS,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

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No. 08-700C
(Special Master Facciola)
FILED UNDER SEAL

DEFENDANT’S RESPONSE TO PLAINTIFF’S
MARCH 9, 2015 FILING ON RULE 60 DISCOVERY

BENJAMIN C. MIZER
Acting Assistant Attorney General
ROBERT E. KIRSCHMAN, JR.
Director
Commercial Litigation Branch
Civil Division
Department of Justice
Ben Franklin Station
P.O. Box 480
Washington, D.C. 20044
Tel: (202) 616-0328
Fax: (202) 514-8624
March 13, 2015

Attorneys for Defendant

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
BACKGROUND ............................................................................................................................ 2
I.

Factual History ........................................................................................................ 2

II.

Procedural History Of The Court Of Federal Claims Case .................................... 3
A.

Initial Pleadings And Discovery ................................................................. 3

B.

The Court’s August 28, 2014 Judgment ..................................................... 4

C.

The Court’s September 17, 2014 Order Regarding The Voicemail
Message From Mr. Trainor ......................................................................... 6

D.

The United States’ Appeal And The Trial Court’s Subsequent
Actions ........................................................................................................ 6

DISCUSSION ................................................................................................................................. 8
I.

Standards For Relief Under Rule 60(d)(3) And Rule 60(b)(3) ............................... 9

II.

Plaintiff Cannot Meet The Rule 60 Causation Requirements ............................... 12

III.

A.

The Alleged Threats To Mr. Trainor ........................................................ 15

B.

Bacon Allegations ..................................................................................... 17
1.

Alleged Pressure From ATF Attorney Ms. Bacon To Not
Re-Open ATF’s Arson Investigation Related To Plaintiff’s
Home ............................................................................................. 17

2.

Mr. Harrington’s Alleged Knowingly False Assertion To
The Court Regarding Ms. Bacon’s Purported Statement.............. 19

C.

The Alleged Failure Of Mr. Kiffner And Ms. Bouman To Produce
Audio Recordings ..................................................................................... 20

D.

The Alleged Failure Of DOJ Attorneys To Discourage Or Correct
Perjury Of Mr. Gillett And Mr. Higman At Trial ..................................... 21

E.

Allegations That Mr. Kiffner And Ms. Bouman Failed To Cure Or
Suborned Deposition Perjury By Three ATF Witnesses .......................... 23

F.

Mr. Harrington’s Allegedly False Representations Regarding Two
ROIs And Wrongful Withholding Of Them ............................................. 24

G.

Alleged Refusal Of Deputy Director Brandon To Sign PRB
Recommendations ..................................................................................... 25

H.

The Issuance Of Three PRB Letters Of Clearance Before Trial .............. 26

I.

The Alleged Coaching Of Mr. Carter Through His Cell Phone ............... 27

Discovery Should Be Denied Because Plaintiff Has Not Raised A
Colorable Claim Of Fraud .................................................................................... 29
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A.

The Available Facts Show There Is No Colorable Claim Of Fraud ......... 29
1.

The Alleged Threats To Mr. Trainor ............................................ 29

2.

Bacon Allegations ......................................................................... 32
i. Alleged Pressure From Ms. Bacon To Not Re-Open
ATF’s Arson Investigation Related To Plaintiff’s Home ....... 32
ii. Mr. Harrington’s Alleged Knowingly False Assertion
To The Court Regarding Ms. Bacon’s Purported
Statement ................................................................................. 35

3.

The Alleged Failure Of Mr. Kiffner And Ms. Bouman To
Produce Audio Recordings ........................................................... 36

4.

The Alleged Failure Of DOJ Attorneys To Discourage Or
Correct Perjury Of Mr. Gillett And Mr. Higman At Trial ............ 38

5.

Allegations That Mr. Kiffner And Ms. Bouman Failed To
Cure Or Suborned Deposition Perjury By Three ATF
Witnesses ...................................................................................... 39

6.

Mr. Harrington’s Allegedly False Representations
Regarding Two ROIs And Wrongful Withholding Of Them ....... 39

7.

Alleged Refusal Of Deputy Director Brandon To Sign PRB
Recommendations ......................................................................... 41

8.

The Issuance Of Three PRB Letters Of Clearance Before
Trial ............................................................................................... 42

9.

The Alleged Coaching Of Mr. Carter Through His Cell
Phone............................................................................................. 42

B.

Plaintiff Cannot Demonstrate Extraordinary Circumstances
Required To Permit Deposition Of High Ranking DOJ Officials ............ 44

C.

If The Special Master Does Permit Discovery, The Scope Should
Be Limited To Appropriately Safeguard The Attorney-Client
Privilege And Attorney Work Product Protection .................................... 45

CONCLUSION ............................................................................................................................. 48

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TABLE OF AUTHORITIES
CASES
Anderson v. Cryovac, Inc.,
862 F.2d 910 (1st Cir. 1988) ......................................................................................... 10, 12, 24
Anderson v. New York,
No. 07 Civ. 9599(SAS), 2012 WL 4513410 (S.D.N.Y. Oct. 2, 2012) ........................... 9, 11, 13
Apotex Corp. v. Merck & Co., Inc.,
507 F.3d 1357 (Fed. Cir. 2007).............................................................................................. 9-10
Baltia Air Lines, Inc. v. Transaction Mgmt., Inc.,
98 F.3d 640 (D.C. Cir. 1996) ........................................................................................ 11, 13, 14
Broyhill Furniture Indus., Inc. v. Craftmaster Furtniture Corp.,
12 F.3d 1080 (Fed. Cir. 1993)............................................................................................... 9, 11
CEATS, Inc. v. Continental Airlines, Inc.,
755 F.3d 1356 (Fed. Cir. 2014)................................................................................................. 10
Clark v. United States,
289 U.S. 1 (1933) ................................................................................................................. 46-47
Council v. AFGE Union,
559 F. App'x 870 (11th Cir. 2014) .................................................................................. 9, 10, 22
Davis v. U.S. Dept. of Health & Human Servs.,
968 F. Supp. 2d 176 (D.C. Cir. 2013) ....................................................................................... 11
Dobyns v. United States,
118 Fed. Cl. 289 (2014) ..................................................................................................... passim
Dobyns v. United States,
91 Fed. Cl. 412 (2010) ................................................................................................................ 3
Eden Isle Marina, Inc. v. United States,
89 Fed. Cl. 480 (2009) .............................................................................................................. 46
Harduvel v. Gen. Dynamics Corp.,
801 F. Supp. 597 (M.D. Fla. 1992) ........................................................................................... 24
Hildebrand v. Steck Mfg. Co., Inc.,
292 F. App'x 921 (Fed. Cir. 2008) ............................................................................................ 10

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In re Cheney,
544 F.3d 311 (D.C. Cir. 2008) .................................................................................................. 44
In re EchoStar Commc’ns. Corp.,
448 F.3d 1294 (Fed. Cir. 2006)................................................................................................. 46
In re Sealed Case,
754 F.2d 395 (D.C. Cir. 1985) .................................................................................................. 47
Irving v. Town of Camden,
No. 12-1850, 2013 WL 7137518 (1st Cir. Apr. 17, 2013) ................................................... 9, 11
Jicarilla Apache Nation v. United States,
88 Fed. Cl. 1 (2009) .................................................................................................................. 46
Johnson v. Maddox,
No.Civ.A. 00-2743, 2005 WL 2318075 (D.D.C. Sept. 22, 2005) ............................................ 22
Midwest Franchise Corp. v. Metromedia Rest. Grp., Inc.,
177 F.R.D. 438 (N.D. Iowa 1997) ............................................................................................ 12
NEC Corp. v. United States,
151 F.3d 1361 (Fed. Cir. 1998)................................................................................................. 44
Ramirez v. Dep’t of Justice,
680 F. Supp. 2d 208 (D.D.C. 2010) .......................................................................................... 29
Roger Edwards, LLC v. Fiddes & Son Ltd.,
427 F.3d 129 (1st Cir. 2005) ..................................................................................................... 12
Schultz v. Butcher,
24 F.3d 626 (4th Cir. 1994) ...................................................................................................... 10
Sellers v. Mineta,
350 F.3d 706 (8th Cir. 2003) .................................................................................................... 10
Stan Lee Media, Inc. v. Conan Sales Co. LLC,
546 F. App'x 725 (9th Cir. 2013) .................................................................................... 9, 11, 12
Walsh v. Hagee,
10 F. Supp. 3d 15 (D.D.C. 2013) .............................................................................................. 29
White v. Fox,
576 F. App'x 327 (5th Cir. 2014) .............................................................................................. 22

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White v. Nat’l Football League,
No. 92-906(MJD), 2015 WL 501973 (D. Minn. Feb. 5, 2015) .......................................... 12, 29
RULES
FRE 615 ........................................................................................................................................ 31
RCFC 26(b) ................................................................................................................................... 46

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
JAY ANTHONY DOBYNS,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

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No. 08-700C
(Special Master Facciola)
FILED UNDER SEAL

DEFENDANT’S RESPONSE TO PLAINTIFF’S
MARCH 9, 2015 FILING ON RULE 60 DISCOVERY
On February 23, 2015, the Court entered an order instructing the Special Master to make
findings to assist the Court in “determining whether defendant’s attorneys, in the conduct of this
case, effectuated a fraud upon the court under RCFC 60(d)(3),” and to further consider, as
necessary, whether there are other grounds for relief from the final judgment 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).” Dkt. No. 335.
On March 4, 2015, the Special Master ordered that plaintiff, Jay Anthony Dobyns, file a
“summary of the issues to be addressed in this inquiry.” Dkt. No. 336. Plaintiff filed a response
on March 9, asking the Special Master to begin a wide-ranging inquiry that has no relation to the
validity of the judgment that was entered in favor of plaintiff. In an effort to assist the Special
Master in understanding the facts that have already been developed regarding the issues
identified by plaintiff, and to set forth the relevant legal authority, defendant, the United States,
provides this response to plaintiff’s filing. The legal authority and factual evidence set forth
below show that there is no merit to plaintiff’s Rule 60 motion, and it should thus be denied.

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They further show that, because plaintiff’s allegations have no merit, the disposition of this
remand can be handled efficiently, without the need for the discovery proposed by plaintiff.
Despite the fact that discovery is anything but automatic under Rule 60, particularly
when, as here, plaintiff has neither presented a “colorable” claim of fraud that impacted the
judgment nor demonstrated circumstances that justify any discovery, plaintiff requests that the
Special Master permit him the extraordinary remedy of taking, among other things, 29 post-trial
depositions, including depositions of the Attorney General of the United States, the former
Deputy Attorney General of the United States, the Acting Associate Attorney General, the
Director of the Bureau of Alcohol, Tobacco, and Firearms (ATF); a United States Attorney, the
former Director of the National Courts Section of the Civil Division, a Deputy Director of the
National Courts Section, and eight additional Department of Justice (DOJ) attorneys. The Court
should not permit this fishing expedition that cannot alter the outcome of this case and is not
justified by any known facts or colorable claim of fraud.
BACKGROUND
I.

Factual History
Plaintiff is a now-retired ATF agent. His breach of contract claim arose out of an

employment settlement agreement executed between him and ATF on September 20, 2007. ATF
intended that the settlement agreement would resolve a variety of employment disputes that
plaintiff had with ATF. The agreement, however, did not resolve ATF’s disputes with plaintiff.
Instead, he soon claimed that ATF breached the settlement agreement by withdrawing his
fictitious identification documents in late 2007, by conducting an incompetent investigation of a
fire that occurred at his house in August 2008, and by failing to properly handle an alleged threat
that ATF learned about in October 2008. He filed an initial complaint in the Court of Federal

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Claims in 2008, and a second amended complaint in May 2009. Ultimately, plaintiff provided
evidence related to only emotional distress damages for ATF’s alleged breach of contract.
The United States asserted a counterclaim against plaintiff. In the settlement agreement,
he had agreed that he would “comply with Agency requirements and will seek permission for
any outside employment, including speaking, writing, teaching or consulting.” The United
States alleged that he breached this provision when, in violation of ATF regulations, he failed to
submit the manuscript for his book, entitled “No Angel, My Harrowing Undercover Journey to
the Inner Circle of the Hells Angels,” to ATF for review before its publication in February 2009.
II.

Procedural History Of The Court Of Federal Claims Case
A.

Initial Pleadings And Discovery

On October 2, 2008, plaintiff initiated suit in the Court of Federal Claims. The United
States filed a motion to dismiss the complaint (Dkt. No. 7) and, in response, plaintiff twice
amended his complaint. Plaintiff’s second amended complaint sought emotional, financial, and
other damages allegedly arising from breach of the 2007 settlement agreement. Dkt. No. 17.
Following the second amendment of the complaint, the Court deemed the Government’s motion
to dismiss renewed (Dkt. No. 20) and granted the motion in part on January 15, 2010. Dobyns v.
United States, 91 Fed. Cl. 412 (2010). The United States subsequently answered the complaint
and filed its counterclaim. Plaintiff answered the counterclaim and, on March 29, 2010, the
Court issued a scheduling order for the conduct of discovery. Dkt. Nos. 43, 44.
Following discovery, from January 2012 to March 2012, the parties filed cross-motions
for summary judgment. See Dkt. Nos. 76, 78, 80, 83, 84, 85, 86. On October 1, 2012, the Court
denied both parties’ motions for summary judgment. Between the time that the United States
filed its summary judgment briefs and the hearing on the motions, Senior Trial Counsel David

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Harrington entered his appearance as attorney of record for the United States. On November 11,
2012, the Court issued a pretrial order setting forth the schedule for conducting trial preparations.
Dkt. No. 102. From the time he became lead trial counsel on the case on April 5, 2012, until
approximately June 2013, Mr. Harrington received more than 400 single-spaced, often lengthy
and rambling e-mails from plaintiff’s counsel regarding this case, many complaining about the
perceived misconduct by the Government in nearly every aspect of litigation. See Dkt. No. 199
at 3; Dkt. No. 337-1 at 5-15, 20-22. Supervisors in the Civil Division also received literally
hundreds of lengthy e-mail communications making allegations of improprieties, a small sliver
of which plaintiff attached to his pleadings. See Dkt. No. 337-1 at 5-15, 20-22.
The Court conducted the first part of the trial in Tucson, Arizona, from June 10, 2013, to
June 21, 2013. Dkt. No. 191. The trial continued in Washington, D.C., from July 22, 2013, to
July 26, 2013. See Dkt. No. 207. The parties submitted post-trial briefing and, on February 18,
2014, the Court heard post-trial oral argument. Dkt. No. 281.
B.

The Court’s August 28, 2014 Judgment

On August 28, 2014, the Court entered judgment for plaintiff in the amount of $173,000.
In a sealed August 25, 2014 opinion, Judge Francis M. Allegra found that, although the
Government did not breach the express terms of the 2007 settlement agreement, and specifically
did not breach paragraph 10 of the agreement in which the agency agreed to comply with all
laws regarding or otherwise affecting plaintiff’s employment with ATF, it nevertheless violated
an implied covenant of good faith and fair dealing between plaintiff and ATF.1 Dobyns v. United

1

Beyond finding no breach of the express terms of the settlement agreement, the Court also did
not find any violation of a statutory obligation by ATF.
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States, 118 Fed. Cl. 289, 313 (2014) (public version) (summarizing that there was a “failure of
some ATF officials to abide with the spirit of [the] contract”).
Finding ATF liable on this basis, the Court then used the “jury verdict method” to award
$173,000 in emotional distress damages. Id. at 325. This constituted an award of 100 percent of
the portion of the $373,000 settlement amount that the Court attributed to non-economic damages.
The Court explained that the award compensated plaintiff for the emotional distress he
purportedly suffered during the two years that ATF allegedly breach its implied covenant of good
faith and fair dealing related to the settlement agreement:
Various testimony also suggests that about $173,000 of the
$373,000, represented the approximate amount that Agent Dobyns
believed he was entitled to receive in terms of non-damages – such
as mental distress, as well as pain and suffering. In the court’s
view, this leads, by extension, to the conclusion that, under the jury
verdict method, plaintiff is entitled to receive $173,000 –
approximating the emotional distress, as well as pain and suffering,
that Agent Dobyns experienced in the period (approximately two
years) while the covenant of good faith and fair dealing was being
breached.
Id. at 325-26. The Court determined that the remaining portion of the $373,000 settlement
amount – $200,000 – was compensation for “economic damages.” Id. at 322. The Court
determined that plaintiff had failed to prove any economic damages because plaintiff failed to
“provide[] any degree of detail regarding the economic damages he [sought].” Id. The Court
concluded that plaintiff was “entitled to no recovery of economic damages.” Id.
The Court also denied the Government’s counterclaim, concluding that it suffered from
numerous factual and legal “flaws.” Id. at 327-30.

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C.

The Court’s September 17, 2014 Order Regarding The Voicemail Message
From Mr. Trainor

On September 17, 2014, the Court issued a sealed order in which it notified the parties
that Judge Allegra had received what he termed an “ex parte communication” on September 16,
2014, which he had forwarded to Deputy Attorney General James Cole “for investigation.” Dkt.
No. 296. The subject communication was a voicemail message left for Judge Allegra by ATF
Supervisory Special Agent Christopher Trainor, who twice testified during the Dobyns trial. In
the voicemail message, Mr. Trainor stated that he wished to discuss “potential attorney
misconduct on the part of the DOJ attorneys.”
D.

The United States’ Appeal And The Trial Court’s Subsequent Actions

On October 24, 2014, the United States filed a notice of appeal in the United States Court
of Appeals for the Federal Circuit, to challenge the Court’s August 28 judgment.2 On October
29, 2014, the Federal Circuit docketed the United States’ appeal and plaintiff’s cross-appeal. On
the same day, the trial court issued a sealed order in which it attempted to void the August 28,
2014 judgment. The order stated, in pertinent part: “. . . the court hereby VOIDS the prior
judgment based upon indications that defendant [United States], through its counsel, has
committed fraud on the court . . . . The court will issue appropriate orders establishing a schedule
for further proceedings in this matter.” Dkt. No. 300 (emphasis in original).
The United States responded to the Court’s October 29 order with a motion to vacate the
order. The Government argued that the Court did not possess jurisdiction to void the August 28
judgment because, among other things, the case was already on appeal at the Federal Circuit,
thus divesting the Court of jurisdiction. On November 13, 2014, the Court granted the United

2

Plaintiff subsequently noticed a cross-appeal.
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States’ motion to vacate its October 29 order. Dkt. No. 308. The next day, however, the Court –
after noting that neither party had filed a motion to set aside the August 28, 2014 judgment –
asked the parties to clarify whether they intended to do so, by filing a motion seeking relief from
the judgment under Rule 60 using the Court’s “indicative ruling” procedures.
Despite the fact that the Court had awarded him $173,000 in the judgment, plaintiff filed
such a motion on November 19, 2014, asserting a litany of unfounded allegations related largely
to stale discovery disputes. Dkt. No. 313. The only new allegations contained in this Rule 60
motion were allegations related to Mr. Trainor’s September 16 voicemail message to the Court.
As explained in detail below, none of these allegations have any bearing on the judgment.
The United States opposed plaintiff’s Rule 60 motion, explaining that Rule 60(b)(3)
requires “that fraud be proven by clear and convincing evidence, not be discoverable by due
diligence before or during the proceeding, and be materially related to the submitted issue.” Dkt.
No. 315. Without addressing any of these legal precepts, the Court issued an “indicative ruling”
pursuant to RCFC 62.1 stating that it would, “if given the opportunity by the Federal Circuit,”
conduct proceedings “to consider whether defendant’s counsel has committed fraud on the
court.” Dkt. No. 316. The Court identified “two instances of conduct by defendant’s counsel
that, in the court’s view, provide indication that fraud on the court has occurred here.” Dkt. No.
316 at 4. The Court did not indicate that it felt that any of the other stale allegations relied upon
by plaintiff in his motion indicated the presence of fraud. Id. Both of the “instances,” identified
by the Court, addressed below, concern the alleged non-disclosure of information that was
immaterial to the breach of contract claim and the resulting judgment.
On December 18, 2014, the Federal Circuit remanded the case to the Court “for the
purposes of allowing that court to consider the motion,” but otherwise retained jurisdiction.

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DISCUSSION
This has been a very difficult and contentious litigation. Throughout discovery and trial,
plaintiff lodged allegations of misconduct by a wide range of individuals employed by both ATF
and the DOJ’s Civil Division. Plaintiff’s allegations came in frequent e-mail correspondence,
often speculating about a sizeable conspiracy within the Government with respect to this
litigation. There were literally hundreds of such e-mail communications during the pendency of
this case. But the reality is that nearly all of the issues – all but one – were fully aired before the
Court prior to or during trial, which precludes a Rule 60 remedy. Indeed, in almost every
instance cited by plaintiff, the Court found favorably for plaintiff on the factual or discovery
dispute at issue, and a Rule 60 remedy for plaintiff – relief from a judgment in his favor – makes
no sense. Those issues were well ventilated and do not permit further inquiry here, given the
purpose of Rule 60 and the limitations built into it. Moreover, the issues plaintiff raises go well
beyond the issues identified by the Court as raising concerns. The Special Master can provide
detailed factual findings and legal determinations based on the established facts set forth below,
without the need for the discovery proposed by plaintiff.
In sum, the Special Master can and should make a recommendation as to the resolution of
plaintiff’s motion without the need for the discovery proposed by plaintiff.
Importantly, to the extent general allegations of attorney misconduct have been made that
did not impact the judgment in plaintiff’s favor, there is a forum for consideration of those
claims – such as the DOJ Office of Professional Responsibility, which has a pending inquiry into
the matter that is on hold awaiting the conclusion of these proceedings. But this proceeding is
limited to applying the standards of Rule 60 and cannot serve as a general inquiry into alleged
attorney misconduct that did not impact the judgment which is already in plaintiff’s favor.

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Finally, even if the Court were inclined to consider the facts of plaintiff’s wide-ranging
allegations, the record adequately shows that there was no misconduct here and further factual
development is not warranted.
I.

Standards For Relief Under Rule 60(d)(3) And Rule 60(b)(3)
“The requirements for relief under Rule 60(d)(3) are stringent and narrow.” Anderson v.

New York, No. 07 Civ. 9599(SAS), 2012 WL 4513410, at *4 (S.D.N.Y. Oct. 2, 2012).
Allegations of fraud on the Court “should embrace only that species of fraud which does or
attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the
judicial machinery cannot perform in the usual manner its impartial task of adjudging cases.”
Id.; Council v. AFGE Union, 559 F. App’x 870, 873 (11th Cir. 2014) (quoting Travelers Indem.
Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985)). A finding of fraud on the Court under Rule
60(d)(3) thus “requires ‘an unconscionable scheme or the most egregious conduct designed to
corrupt the judicial process.’” Irving v. Town of Camden, No. 12–1850, 2013 WL 7137518, at
*1 (1st Cir. Apr. 17, 2013) (quoting Roger Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d 129,
133 (1st Cir. 2005)); Stan Lee Media, Inc. v. Conan Sales Co. LLC, 546 F. App’x 725, 728 (9th
Cir. 2013) (quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960)). “Fraud upon the court
is thus ‘typically confined to the most egregious cases, such as bribery of a judge or juror, or
improper influence exerted on the court by an attorney, in which the integrity of the court and its
ability to function impartially is directly impinged.’” Broyhill Furniture Indus., Inc. v.
Craftmaster Furtniture Corp., 12 F.3d 1080, 1085-86 (Fed. Cir. 1993) (quoting Great Coastal
Express, Inc. v. Int’l Bhd. of Teamsters, 675 F.2d 1349, 1356 (4th Cir. 1982)). As the Federal
Circuit has emphasized, “[f]raud upon the court requires that there was a material subversion of
the legal process . . . [and] requires rigorous proof, as do other challenges to final judgment, lest

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the finality established by Rule 60(b) be overwhelmed by continuing attacks on the judgment.”
Apotex Corp. v. Merck & Co., Inc., 507 F.3d 1357, 1360-61 (Fed. Cir. 2007).
Fraud upon the court must be established by clear and convincing evidence. Council, 559
F. App’x at 872 (citing Cox Nuclear Pharm., Inc. v. CTI, Inc., 478 F.3d 1303, 1314 (11th Cir.
2007)). The elements of fraud under Rule 60(b)(3) are similar to the standards set under Rule
60(d)(3). E.g., CEATS, Inc. v. Continental Airlines, Inc., 755 F.3d 1356, 1360 (Fed. Cir. 2014)
(“the party seeking relief under Rule 60(b)(3) must prove by clear and convincing evidence ‘[]
that the adverse party engaged in fraud or other misconduct’ . . .”) (quoting Hesling v. CSX
Transp., Inc., 396 F.3d 632, 641 (5th Cir. 2005)) (other citations omitted); Hildebrand v. Steck
Mfg. Co., Inc., 292 F. App’x 921, 925 (Fed. Cir. 2008) ( “[a] party seeking to rely on Rule
60(b)(3) must produce clear and convincing proof of fraud.”) (citing Zurich N. Am. v. Matrix
Serv., Inc., 426 F.3d 1281, 1290 (10th Cir. 2005)).
An additional requirement, of particular importance here, is that the fraud alleged to
warrant the granting of a motion under Rule 60(b)(3) or Rule 60(d)(3) must have had a
dramatically adverse impact on the moving party. “[T]he party seeking relief under Rule
60(b)(3) must prove by clear and convincing evidence . . . that [the non-moving party’s]
misconduct prevented the moving party from fully and fairly presenting his case.” CEATS, Inc.,
755 F.3d at 1360-61 (quoting Hesling, 396 F.3d at 641); Schultz v. Butcher, 24 F.3d 626, 630
(4th Cir. 1994) (same); Sellers v. Mineta, 350 F.3d 706, 715 (8th Cir. 2003) (same). To meet this
requirement, the asserted misconduct “must substantially have interfered with the aggrieved
party’s ability fully and fairly to prepare for and proceed [to judgment].” Anderson v. Cryovac,
Inc., 862 F.2d 910, 924 (1st Cir. 1988) (emphasis in original). Thus, in CEATS, Inc., where the
party moving under Rule 60(b)(3) conceded “that there is nothing in the record that shows it was

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not given a full and fair opportunity to present its case[,]” the Federal Circuit affirmed the district
court’s denial of the plaintiff’s Rule 60(b)(3) motion. 755 F.3d at 1361. Similarly, in Baltia Air
Lines, Inc. v. Transaction Management, Inc., 98 F.3d 640, 643 (D.C. Cir. 1996), the United
States Court of Appeals for the District of Columbia, in affirming the district court’s denial of
plaintiff’s Rule 60(b) motion, emphasized that fraud on the court must have materially affected
the outcome of the litigation: “It is particularly noteworthy . . . that any misrepresentations to the
District Court were not relevant to the court’s decision to confirm the arbitration award.”
Consistent with these standards, allegations that are based on the non-disclosure of
information are “generally insufficient to support a claim of fraud on the court.” Stan Lee
Media, 546 F. App’x at 728 (citing Appling v. State Farm Mut. Auto Ins. Co., 340 F.3d 769, 780
(9th Cir. 2003)); see Broyhill Furniture, 12 F.3d at 1087 (“it is much more convincing to find
fraud on the court in falsely fabricating an article presented in court than it is to draw a similar
conclusion from a failure to disclose material prior art to the PTO.”); Davis v. U.S. Dept. of
Health & Human Servs., 968 F. Supp. 2d 176, 184 (D.C. Cir. 2013) (“fraudulent documents,
false statements, and perjury, all of which are categorically similar to the nondisclosure of
relevant information because they affect a court’s view of the evidence, do not generally
constitute fraud on the court.”). Significantly, “the fraud, misrepresentation or conduct must
have actually deceived the court. If a court’s judgment was not influenced by the conduct at
issue, the judgment should not be set aside.” Anderson, 2012 WL 4513410, at *4 (quoting In re
Old Carco LLC, 423 B.R. 40, 52 (Bankr. S.D.N.Y. 2010)). If an alleged fraud on a court is
brought to the court’s attention well before its dispositive ruling, Rule 60(d)(3) is inapplicable.
Irving, 2013 WL 7137518, at *1.

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Rule 60 does not provide for discovery. The courts have, however, occasionally
exercised “the discretion to allow a party to pursue post-judgment discovery when the moving
party can make a ‘prima facie demonstration of success on the merits’ or, alternatively, a
‘colorable claim.’” See, e.g., White v. Nat’l Football League, No. 92–906(MJD), 2015 WL
501973, at *2 (D. Minn. Feb. 5, 2015) (citing Pearson v. First NH Mortg. Corp., 200 F.3d 30, 35
(1st Cir. 1999); Midwest Franchise Corp. v. Metromedia Rest. Grp., Inc., 177 F.R.D. 438, 440
(N.D. Iowa 1997)).
Discovery is not automatic under Rule 60, nor should it be. Even if a party demonstrates
a “colorable” claim of fraud, it is not automatically entitled to discovery. A court should still
exercise its discretion to determine whether discovery is appropriate in the circumstances. Stan
Lee Media, 546 F. App’x at 728; Roger Edwards, LLC, 427 F.3d at 137 (even with the discretion
given to judges under Rule 60(b), discovery not permitted where moving party pointed “to
nothing in this case that could be unearthed by discovery or proved in an evidentiary hearing that
would alter our analysis”).
II.

Plaintiff Cannot Meet The Rule 60 Causation Requirements
Because it is readily evident that plaintiff cannot satisfy the requirement in Rule 60(d)(3)

and Rule 60(b)(3) that the alleged fraud materially adversely impacted him or the Court’s
judgment, we demonstrate, as an initial matter, that plaintiff fails to meet the applicable
causation requirements.
The facts available without discovery establish that plaintiff cannot show the adverse
impact necessary to warrant the granting of a motion under Rule 60(b)(3) or Rule 60(d)(3)
because the alleged misconduct did not (1) substantially interfere with plaintiff’s ability to fully
and fairly present his case, see Cryovac, Inc., 862 F.2d at 924; (2) influence the Court’s

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judgment, see Anderson, 2012 WL 4513410, at *4; or (3) materially affect the outcome of the
litigation, see Baltia Air Lines, 98 F.3d at 643. Because the available facts demonstrate that
plaintiff cannot meet Rule 60’s stringent causation requirements, the Court can – and should –
deny plaintiff’s motion without discovery.
There is a very simple response to all but one of plaintiff’s allegations given that they
were raised and addressed prior to judgment in the case:
 With respect to the claim (Nos. 2-3 in plaintiff’s list) that Bacon “instruct[ed] . . .
Atteberry . . . not to re-open ATF’s investigation into the arson,” this issue was
identified at trial, factual submissions relating to it were provided to the Court during
trial, and the issue was addressed in detail by the Court in its opinion.
 With respect to the claim (No. 4) that two audio recordings were withheld, plaintiff
received those recordings prior to trial, and was able to take additional depositions
based on them, as plaintiff acknowledges in his filing.
 With respect to the claim (No. 5-6) that certain ATF witnesses did not tell the truth on
the stand, plaintiff’s examination of those witnesses led the Court to discredit them,
and the factual dispute was therefore resolved in plaintiff’s favor at trial.
 With respect to the claim (Nos. 7-8) that certain Internal Affairs Reports of
Investigation were improperly withheld, those reports were produced to plaintiff and
were credited by the Court in ruling in plaintiff’s favor.
 With respect to the claim that ATF letters of clearance should not have been issued
(No. 9), the letters were considered by the Court and given little weight, as plaintiff
acknowledges (Dkt. No. 337 at 29).

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 With respect to the allegation that Mr. Carter’s telephone rang at trial as a secret
signal to the witness (No. 10), plaintiff had the opportunity to raise this wildly
speculative allegation at trial and question the witness regarding it, and indeed
acknowledges that he obtained favorable testimony from Mr. Carter on the key issue
relevant to his claim (Dkt. No. 337 at 33).
Just one issue arose after the judgment in this case – the voicemail message left by Mr.
Trainor to Judge Allegra after the public release of the Court’s opinion. Further inquiry into that
allegation is not warranted given that, even if true, it would not have affected the Court’s
judgment. Nonetheless, even if a factual inquiry occurs – and none should –it must be limited to
determining the facts surrounding that issue or some portion of that issue.
In addition to the fact that the alleged misconduct did not prevent plaintiff from fully and
fairly presenting his case and did not influence the Court, plaintiff’s allegations of fraud fail to
meet the Rule 60(d)(3) and Rule 60(b)(3) causation requirement because the alleged conduct
could not have affected the outcome of the litigation.
A judgment may not be set aside pursuant to Rule 60 unless the alleged misconduct
materially affected the outcome of the litigation. Baltia Air Lines, Inc., 98 F.3d at 643. This
requirement is fatal to plaintiff’s Rule 60 motion because the available facts establish that none
of the alleged misconduct could have affected the Court’s judgment. Specifically, plaintiff’s
$173,000 damage award constituted 100 percent of the emotional distress damages that the Court
concluded were imbedded in the settlement agreement. Thus, even assuming plaintiff could
somehow demonstrate fraud on the part of the United States sufficient to satisfy the rigorous
standards of Rule 60(d)(3) or Rule 60(b)(3) – and he cannot do so – he still would not be entitled
to any award greater than $173,000. This is because such a demonstration would in no way

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affect the Court’s conclusion that, given his failure of proof on economic damages, “plaintiff is
entitled to no recovery of economic damages.” Dobyns, 118 Fed. Cl. at 322. Because the Court
concluded that plaintiff is not entitled to economic damages, $173,000 is the maximum award he
may recover for the Government’s breach. Importantly, plaintiff makes almost no attempt to link
any of his allegations to the award he received at trial, and the reason is that there is no link to
make these claims suitable to the resolution in a Rule 60 proceeding.
A.

The Alleged Threats To Mr. Trainor

Plaintiff’s allegations related to the purported threat from former ATF Agent Charles
Higman to Mr. Trainor (Dkt. No. 337 at 10-14) neither prevented plaintiff from fully presenting
his case, nor influenced the Court. The Court has cited Mr. Trainor’s allegations as the primary
basis to consider plaintiff’s Rule 60 motion. E.g., Dkt. No. 316. This is understandable as these
allegations constitute the only matter about which plaintiff and the Court had not been fully
aware before the Court’s judgment. Nevertheless, and as explained below, Mr. Trainor’s
allegations (which are unfounded) do not support a motion under Rule 60.
The alleged threat from Mr. Higman to Mr. Trainor did not interfere with plaintiff’s
ability to fully and fairly present its case, nor did it influence the Court. See Appendix (App.) 76
(e-mail from Mr. Trainor to Gregory Plott, with transcription of Mr. Higman’s June 28, 2013
voicemail message); 77-81 (informal transcription of July 2, 2013 phone conversation between
Mr. Trainor and Mr. Higman).3 Both Mr. Higman and Mr. Trainor had concluded their
testimony about the ATF fire investigation before Mr. Higman left his voicemail message. That
3

The parties can provide copies to the Special Master of the audio recordings of (1) Mr.
Higman’s June 28, 2013 voicemail message to Mr. Trainor; and (2) the July 2, 2013 recorded
conversation between Mr. Trainor and Mr. Higman. Until then, we have provided informal
transcriptions of the relevant recordings only to assist the Special Master.

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testimony therefore could not have been affected by the alleged threat. Mr. Trainor’s testimony
during the second phase of trial concerned a discrete subject, his ROI on the withdrawal of
plaintiff’s fictitious credentials – a matter that was not discussed by Mr. Trainor and Mr.
Higman. In addition, Mr. Trainor was not a percipient witness, and, as the Court itself found, his
after-the-fact investigations merely “corroborat[ed] . . . facts that are otherwise reflected by the
testimony and documents in the record.” Dobyns, 118 Fed. Cl. at 312. Finally, Mr. Trainor’s
testimony, and the ROIs he authored, were credited by the Court in entering its judgment in favor
of plaintiff. Id. Mr. Higman’s testimony, on the other hand, was not credited. Id. at 311-12.
The absence of any effect on plaintiff’s ability to litigate his case is plain: Mr. Trainor
was called by plaintiff to testify on the ROIs he authored and did, in fact, testify on the ROIs.
The testimony plaintiff’s counsel elicited from Mr. Trainor was credited by the Court. Further,
the alleged threat by DOJ attorneys to Mr. Trainor, even if substantiated (and, again, there was
no threat), did not deceive the Court, as necessary to set aside a judgment under Rule 60. The
Court, in deciding plaintiff’s Rule 60 motion, must determine whether the alleged threat, if
substantiated, resulted in the Court being improperly influenced or deceived. The available facts
demonstrate that is not the case.
Nor did the alleged threats affect the Court’s judgment. As noted above, the Court
credited the testimony of Mr. Trainor and found that Mr. Higman was not credible. Even if the
Court were to accept, for the purpose of plaintiff’s Rule 60 motion, that an attorney threatened
Mr. Trainor’s career if he disclosed the purported threat made by Mr. Higman (which we
vigorously dispute), neither the Court’s judgment, nor the amount of that judgment, would be
affected. Mr. Trainor’s testimony was not relevant to the Court’s determination that ATF did not
breach the express terms of the settlement agreement or the availability of economic damages,

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and plaintiff makes no claim that there is a link. Mr. Trainor’s testimony also was not relevant to
the Court’s determination on the quantum of emotional distress damages, which were awarded in
full. Because none of the alleged acts of the DOJ attorneys involving Mr. Trainor affected the
Court’s judgment, they do not support the vacatur of the judgment under Rule 60. The noneffect of Mr. Trainor’s allegations on the judgment of the Court is fully apparent from the
already-available information, because Mr. Higman’s telephone calls with Mr. Trainor are, as
noted above, recorded and available.
B.

Bacon Allegations
1.

Alleged Pressure From ATF Attorney Ms. Bacon To Not Re-Open
ATF’s Arson Investigation Related To Plaintiff’s Home

Plaintiff claims that, in January 2012, ATF attorney Valarie Bacon “possibly obstructed
an arson investigation and tampered with witnesses and evidence, by directing [ATF Special
Agents] Thomas Atteberry and Carlos Canino not to re-open ATF’s investigation.” Dkt. No. 313
at 4. Of plaintiff’s many allegations, this and allegations concerning Mr. Trainor are the only
ones mentioned by the Court as possibly warranting further inquiry. Dkt. No. 316 at 4. But this
allegation was fully considered prior to the judgment, and, in any event, it could not have
impacted the judgment.
Plaintiff postulates, with no factual basis at all, that “Mr. Kiffner, Ms. Bouman and others
may have directed her and assisted her to file a false statement.” Dkt. No. 313 at 4. After
hearing testimony from Mr. Atteberry (App. 59-61), the Court directed the United States to
investigate what transpired and report back to the Court. Consistent with that direction, this
matter was then addressed thoroughly in the Government’s July 1, 2013 filing – which was
submitted prior to the second half of trial. Dkt. No. 199. When contacted about the matter in
June and July 2013, Ms. Bacon had no specific recollection of discussing the Dobyns case with
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Mr. Atteberry, but did acknowledge that the conversation could have taken place. Id. at 4. Mr.
Atteberry, in a follow-up interview, described her comment as “an ‘off the cuff comment,’ and
stated that he did not consider it to be a matter that should be reported as improper.” Id. at 5.
In his subsequent interview, Mr. Atteberry confirmed what he had testified to at trial, that
the comment by Ms. Bacon had no effect on his course of action. See Dkt. No. 199 at 5.
Although there was already a fire investigation being led by the FBI in January 2012, ATF did in
fact re-open its own investigation in 2012 after Ms. Bacon purportedly spoke to the special
agents about reopening the investigation. Indeed, even plaintiff stated on March 20, 2013, over a
year later, that “[f]ortunately[,] Atteberry and Canino did not allow an incompetent attorney to
dictate to them how ATF investigates crimes. The investigation was re-opened and is active
today and making progress.” App. 63 (emphasis added). In sum, Ms. Bacon’s purported
comment simply had no effect on ATF’s re-opening the fire investigation.
Plaintiff was aware of the alleged comments made by Ms. Bacon to Mr. Atteberry and
Mr. Canino well before the trial in this case, as he acknowledges. Dkt. No. 337 at 15. Thus, the
conversations (if they took place) did not interfere in any way with plaintiff’s ability to fully and
fairly present his case.
Plaintiff does not claim that the Bacon allegations had any impact on the Court’s
judgment, and, as we have explained, there was no impact – the allegations were uncovered well
before judgment, they did not impact the testimony of the witnesses, and the Court addressed
these allegations in detail in its opinion. The Court specifically referred the matter relating to
Ms. Bacon’s alleged statement to DOJ’s Office of Professional Responsibility. See 118 Fed. Cl.
at 289, 331 n.73. That Office – which has jurisdiction over attorney misconduct both at ATF and
the Civil Division – has initiated an inquiry. That, rather than a Rule 60 proceeding, is the

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proper venue for evaluation of alleged attorney misconduct, but that alleged misconduct could
have had no possible impact on the Court’s judgment.
2.

Mr. Harrington’s Alleged Knowingly False Assertion To The Court
Regarding Ms. Bacon’s Purported Statement

Relatedly, plaintiff also claims that, during trial, lead counsel David Harrington lied to
the Court when, while in chambers and off the record during trial on June 17, 2013, he told the
Court that he was unaware of Ms. Bacon’s comment to the special agents until Mr. Atteberry
testified about the purported comment at trial. In fact, plaintiff’s counsel had sent Mr.
Harrington an e-mail about this matter on March 21, 2013, but Mr. Harrington did not recall the
e-mail while addressing this matter with the Court in chambers. Mr. Harrington promptly
corrected this inadvertent misstatement in the Government’s July 1, 2013 filing. Dkt. No. 199.
Plaintiff cannot show that Mr. Harrington’s statement – which was corrected just a few
weeks later and prior to the end of trial – interfered with his ability to present his case in any
way. Whether Mr. Harrington could recall plaintiff’s e-mail making the allegation about Ms.
Bacon –which was one of literally hundreds of e-mail allegations Mr. Harrington had received
from plaintiff’s counsel – was simply not relevant to the issues before the Court. Mr. Harrington
was, of course, not a witness in the case and his recollection had no relevance to the factual
issues before the Court.
And Mr. Harrington’s statement, which was quickly corrected, did not improperly
influence the Court. After his statement, the matter was fully briefed before the Court, to the
Court’s satisfaction. App. 68 (Aug. 21, 2013 order denying plaintiff’s request for a status
conference, stating “The court has determined that it will deal with this matter in the context of
this litigation and that it has adequate information for that purpose”) (emphasis added)).

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Mr. Harrington’s statement also could not have had any effect on the Court’s
determination that ATF did not breach the settlement agreement or its conclusion that $173,000
represented 100 percent of the emotional distress damages.
C.

The Alleged Failure Of Mr. Kiffner And Ms. Bouman To Produce Audio
Recordings

Plaintiff alleges that Kent Kiffner, who was lead counsel until early April 2012, and ATF
attorney Rachel Bouman “withheld telephone surveillance recordings despite plaintiff’s requests
for production.” Dkt. No. 313 at 4. Plaintiff’s memorandum acknowledges that this allegation
concerns a discovery issue that was resolved with the production of the two audio tapes in
August 2011, with the Court’s full knowledge. Dkt. No. 337 at 19. Because this discovery issue
was resolved in plaintiff’s favor nearly two years prior to trial, it cannot provide a basis for
vacatur of the Court’s judgment.
The Court resolved this matter on October 24, 2011, by granting the parties’ October 12,
2011 motion to which plaintiff consented, reopening five of plaintiff’s depositions. Dkt. Nos. 73
and 74. In the consent motion, the United States explained, as Mr. Kiffner had informed
plaintiff’s counsel, that Mr. Kiffner “discovered that the recordings had been produced by the
agency to the Civil Division, but had been omitted from production when the agency’s materials
were converted for use by the Government in an electronic database.” Dkt. No. 73 at 2. The
consent motion also explained that the recordings were provided to plaintiff’s counsel at an
August 23, 2011 deposition, and acknowledged that “the recordings should have been produced
by the Government with the bulk of defendant’s production.” Id. at 1-2. Remarkably, the
motion explains that “to avoid any prejudice to plaintiff, the parties have agreed, subject to court
approval, to reconvene five of the depositions taken since June 2011. These reconvened
depositions will be done at the Government’s expense.” Id. at 2 (emphasis added).
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Plaintiff’s counsel subsequently took those additional depositions and he eventually
moved the audio recordings into evidence at trial. Despite that, plaintiff’s counsel continued to
send harassing letters demanding further information regarding the “chain of custody” of the
audio tapes. See App. 24; see also App. 22-23.
Quite simply, this discovery issue – which was resolved almost two years prior to the
commencement of trial – cannot provide a basis for vacatur of the Court’s judgment under Rule
60(b)(3) or Rule 60(d)(3). The initial inadvertent omission of the audio recordings from the
Government’s production did not prejudice plaintiff. A copy of the audio recordings was made
available to plaintiff’s counsel, at Mr. Kiffner’s instruction, in August 2011. The Government
cooperated with plaintiff to reconvene five depositions, at the Government’s expense. And
plaintiff moved the audio recordings into evidence at trial. Moreover, there can be no question
that the Court was not improperly influenced by this discovery issue, which plaintiff
acknowledges was resolved with the Court’s full knowledge. See Dkt. No. 337 at 20.
Plaintiff’s allegations regarding the audio recordings also could not affect the outcome of
this case. The audio recordings were considered by the Court in reaching its decision. Even if
the Court were to accept plaintiff’s wholly unfounded allegation that the initial omission of the
audio recordings from the Government’s document production was “intentional misconduct,” the
allegation would not change the Court’s liability ruling, the quantum of damages awarded, or the
resulting judgment.
D.

The Alleged Failure Of DOJ Attorneys To Discourage Or Correct Perjury
Of Mr. Gillett And Mr. Higman At Trial

Plaintiff alleges that George Gillett and Charles Higman committed perjury at trial and
further alleges (without any support or basis) that DOJ attorneys “did nothing to discourage or
correct” the alleged perjury and “likely encouraged” it. Dkt. 313 at 4. Plaintiff’s allegations of
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perjury are insufficient – as a matter of law – to constitute a basis to grant relief under Rule 60.
As the Special Master has stated in regard to a previous case,
Perjury alone, however, where the court and its officers are not
involved, does not raise to the level of a fraud upon the court. As
this court explained: “The possibility of a witness testifying
falsely is always a risk in our judicial process, but there are
safeguards within the system to guard against such risks. The most
basic of these is cross-examination of witnesses.” Lockwood, 46
F.R.D. at 632-33.
Johnson v. Maddox, No. Civ.A. 00-2743, 2005 WL 2318075, at *1 (D.D.C. Sept. 22, 2005).
Thus, the Special Master in Johnson counseled that possible perjury should be “most properly
addressed through cross-examination, presentation of contrary evidence, and argument.” Id. at
*2; see also Council, 559 F. App’x at 873.
Conclusory allegations of perjury and fraudulent concealment of perjury do not constitute
the requisite clear and convincing evidence, or demonstrate conduct that would prevent the
moving party from fully and fairly presenting its case. See White v. Fox, 576 F. App’x 327, 332
(5th Cir. 2014). Plaintiff had every opportunity to examine both witnesses at deposition and at
trial and, in fact, did so. Further testimony from these witnesses would be nothing more than a
prohibited second bite at the apple, under the guise of a Rule 60 motion, because plaintiff cites
no new evidence establishing that its prior examinations of the witnesses were not fair
opportunities to test the credibility of the witnesses and their testimony.
Nor can plaintiff establish that the alleged perjury deceived or improperly influenced the
Court to the detriment of plaintiff’s case. Both Mr. Gillett and Mr. Higman appeared before the
Court at trial, under oath. Plaintiff’s counsel, as well as the Court, had the opportunity to
question them about the bases for their testimony. After weighing their testimony, the Court

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made clear credibility findings regarding these two individuals, discounting their testimony.
Dobyns, 118 Fed. Cl. at 311-12.
Moreover, these allegations could not, even if substantiated, alter the Court’s judgment.
The Court considered the testimony of Mr. Gillett and Mr. Higman and did not find either
witness to be credible. In other words, even if the Court accepts, for the purpose of plaintiff’s
Rule 60 motion, the wholly unfounded and untrue allegations against DOJ attorneys, plaintiff
cannot demonstrate any potential effect on the outcome of the case. Further discrediting of Mr.
Higman or Mr. Gillett would not affect the Court’s decision to award plaintiff $173,000 – the
amount the Court determined to be the maximum possible award for emotional distress damages.
Thus, these allegations do not support vacatur pursuant to Rule 60.
E.

Allegations That Mr. Kiffner And Ms. Bouman Failed To Cure Or Suborned
Deposition Perjury By Three ATF Witnesses

Plaintiff makes the bald assertion that “Mr. Kiffner and Ms. Bouman failed to cure or
suborned deposition perjury by Mr. Gillett, Mr. Higman regarding the surveillance and suspect
status of plaintiff and also by Los Angeles SAC John Torres.” Dkt. No. 313 at 4. Plaintiff’s
allegations regarding the deposition testimony of Mr. Higman and Mr. Gillett are infirm for the
same reasons identified above. Plaintiff cannot show any prejudice relating to Mr. Torres. The
alleged perjury, relating to whether Mr. Torres attempted to sell any ATF investigational stories,
is irrelevant and, by his own account, plaintiff was aware of the alleged perjury well before trial.
See Dkt. No. 337 at 23. The alleged and irrelevant perjury also could not influence the court,
inasmuch as Mr. Torres did not testify at trial. See Dkt. No. 207 at 1.
For the same reasons, these allegations cannot sustain vacatur under Rule 60(b)(3) or
Rule 60(d)(3). The allegations, even if accepted as true, simply could not affect the Court’s
decision in any way.
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F.

Mr. Harrington’s Allegedly False Representations Regarding Two ROIs And
Wrongful Withholding Of Them

Plaintiff alleges that Mr. Harrington “wrongly withheld” two ROIs and “falsely
represented” their relevance to the Court to keep them from being used at trial. Dkt. No. 313 at
4. These allegations again cannot provide the basis for vacatur pursuant to Rule 60 because the
ROIs were in fact produced and plaintiff used them at trial.
The ROI Related To The Fire Investigation: Plaintiff cannot show that the timing of the
Government’s production of the ROI or Mr. Harrington’s statements regarding its relevance
substantially interfered with his ability to fully and fairly present his case. See Cryovac, Inc.,
862 F.2d at 924. This was a pre-trial discovery matter which was resolved without the Court’s
intervention. Mr. Harrington consistently apprised plaintiff of the status of the document.
Plaintiff’s counsel was provided the opportunity to view the ROI in January 2013, and did so.
See Harduvel v. Gen. Dynamics Corp., 801 F. Supp. 597, 609 (M.D. Fla. 1992) (“Where a party
grants access to its files in conformity with a discovery order, misconduct will not ordinarily be
found.”) Finally, of course, as he believed he would, plaintiff’s counsel then received the ROI
prior to trial, introduced it into evidence, and used it to examine witnesses.
Additionally, the timing of the Government’s production of the ROI relating to the fire
investigation and Mr. Harrington’s statements regarding its relevance did not improperly
influence the Court, as required for relief under Rule 60. Plaintiff introduced the ROI into
evidence at trial, and the Court favorably considered the ROI in reaching its decision. Dobyns,
118 Fed. Cl. at 312.
The ROI Related To The Withdrawal Of Fictitious Credentials: Plaintiff also contends
that Mr. Harrington ”wrongfully withheld” a second ROI concerning the withdrawal of
plaintiff’s fictitious credentials, and also lied about its relevance. Dkt. No. 313 at 4. The
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preparation of this second ROI was not completed until mid-June 2013, and it was produced to
plaintiff shortly thereafter. Plaintiff also introduced this second ROI into evidence and used it in
questioning Mr. Trainor. Plaintiff’s allegations relating to the second ROI fail Rule 60’s
causation requirement for this reason.
G.

Alleged Refusal Of Deputy Director Brandon To Sign PRB
Recommendations

Plaintiff asserts that Deputy Director Thomas Brandon “replaced [Professional Review
Board (PRB)] Bureau Deciding Official (BDO) Steven Zellers, who was anticipated to sign ROI
1’s PRB recommendations within days of issuance,” and “then refused to sign the PRB
recommendations for ROI 1 and ROI 2, possibly at DOJ’s instruction for privilege reasons.”
Dkt. No. 313 at 4 (emphasis added).
Plaintiff appears to be confused about the role of Deputy Director Brandon and has not
articulated how his confused allegations relate to his ability to fully and fairly present his case,
nor can he. The identity of the deciding official and the actions taken in response to the PRB’s
recommendations are not relevant to the issues in this case. In any event, information relating to
the PRB recommendations, and Deputy Director Brandon’s role as the deciding official, were
disclosed to plaintiff as soon as practicable following the conclusion of ATF’s administrative
proceedings and in time for plaintiff to use the reports at trial.
This information was also disclosed to the Court, although neither the identity of the
deciding official, nor the actions that were taken in response to the PRB’s recommendations,
were actually relevant to the Court’s decision. The Court found the two ROIs that were
reviewed by the PRB to be credible and considered them accordingly. Dobyns, 118 Fed. Cl. at
312 (“the court attaches considerable weight to the testimony of Agent Trainor, who authored the

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2012 and 2013 IAD reports”). As such, plaintiff cannot demonstrate that the Court was deceived
or improperly influenced by his allegations of misconduct.
Plaintiff also cannot demonstrate that his allegations regarding Deputy Director Brandon
could affect the Court’s judgment. Because it is not germane to the Court’s decision who the
deciding official was, plaintiff’s unfounded allegations that the DOJ could “possibly” have
instructed Deputy Director Brandon to “refuse to sign the PRB recommendations” could not
affect – let alone materially affect – the Court’s liability ruling or damages award.
H.

The Issuance Of Three PRB Letters Of Clearance Before Trial

Plaintiff postulates that, “[o]n the eve of trial, Mr. Brandon issued PRB letters of
clearance for William Newell, Marino Vidoli and Steven Pugmire; if this was at the DOJ’s
request, it would constitute witness and evidence tampering.” Dkt. No. 313 at 5. Plaintiff cannot
establish any prejudice as a result of the alleged request or the issuance of the letters because
plaintiff does not challenge the validity of the PRB letters of clearance. The only effect that their
issuance could have had on the trial was to deprive the plaintiff of possible impeachment through
the implication that the witnesses would not receive clearance letters. And, as a matter of timing,
the letters of clearance were issued within one month after the PRB found no wrongdoing related
to the withdrawal of plaintiff’s credentials, App. 48-49, clearly not a questionable length of time.
In short, these allegations show no effect whatsoever on plaintiff’s ability to fully and fairly
present his case. Further, there is no evidence that the issuance of the letters of clearance (or the
entirely unsupported allegation that the issuance may have been at the DOJ’s request) improperly
influenced the Court, nor could these allegations, even if true, alter the Court’s judgment. The
letters of clearance were entered into evidence at trial and were considered by the Court. App.

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48-49. The Court found the two ROIs that were reviewed by the PRB to be credible, but gave
the letters of clearance little weight. See Dobyns, 118 Fed. Cl. at 312, 320.
I.

The Alleged Coaching Of Mr. Carter Through His Cell Phone

Mr. Ronnie Carter was called as plaintiff’s first witness and testified on June 11, 2013.
Mr. Carter’s cell phone rang twice during his testimony, and plaintiff alleges that Government
counsel “may have signaled the witness through his phone to look for cues.” Dkt. No. 313 at 5.
Plaintiff’s allegations again fail the causation requirements of Rule 60(b)(3) and Rule
60(d)(3). Plaintiff cannot establish that the ringing of Mr. Carter’s cell phone during trial
substantially interfered with his ability to fully and fairly present his case. Mr. Carter was on the
stand both times that his phone rang, and plaintiff’s counsel could have questioned Mr. Carter
about the phone calls he received. If plaintiff believed that there was something suspicious about
Mr. Carter’s cell phone ringing during his examination, he could have also asked to examine the
cell phone or raised the issue with the Court. Plaintiff had ample opportunity to cross-examine
Mr. Carter generally, and to investigate the circumstances of the ringing cell phone specifically.
There is also no indication that the ringing of Mr. Carter’s cell phone influenced or
deceived the Court. Had the Court been concerned about the circumstances of the cell phone, it
also could have questioned Mr. Carter about the calls he received during his testimony. The
record indicates that the Court believed this to be exactly what it was – the inadvertent failure of
an elderly, disabled witness to silence his cell phone before taking the stand.
Although plaintiff raised allegations regarding Mr. Carter’s cell phone in his Rule 60
motion, it was unclear how plaintiff believed those unfounded allegations could have affected the
case. Now, in speculative new allegations not made in his Rule 60 motion, plaintiff suggests that
“if evidence emerges” that the DOJ attorney influenced the testimony of Mr. Carter or Mr.

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Hoover, it could affect the Court’s prior determination that ATF did not breach the settlement
agreement. Dkt. 337 at 32 (emphasis added). These speculative allegations could not possibly
relate to the outcome in this case. In rejecting plaintiff’s argument that the Government breached
paragraph 10 of the settlement agreement, the Court relied almost exclusively on the language of
the settlement agreement itself rather than any extrinsic evidence; in particular, the Court did not
rely at all on the testimony of Mr. Carter or Mr. Hoover. Dobyns, 118 Fed. Cl. at 314-16. Thus,
there is no reason to believe, even assuming some new information would be revealed during any
further discovery taken, that such evidence would alter the trial court’s opinion concerning the
Government’s non-breach of paragraph 10 of the settlement agreement.
Further, even if plaintiff could convince the Court through second examinations of Mr.
Carter or Mr. Hoover that it erred in determining that there was no breach of paragraph 10 – a
speculative assumption – any such change in the Court’s opinion would not alter the Court’s
judgment in favor of plaintiff in the amount of $173,000. See Dobyns, 118 Fed. Cl. at 322
(“Plaintiff’s post-trial briefs have not provided any degree of detail regarding the economic
damages he seeks, particularly insofar as the breach of the covenant goes. Accordingly, the court
concludes that plaintiff is entitled to no recovery of economic damages.”). Instead, at most, it
would only add a second basis for liability (in addition to the breach of the implied covenant of
good faith and fair dealing) which would not impact the amount of non-economic damages that
would be awarded to plaintiff in any way because he has already received 100 percent of those
damages.4

4

The other allegations raised for the first time in plaintiff’s memorandum should be summarily
rejected. With no factual basis whatsoever, plaintiff speculates that DOJ may have directed ATF
personnel to telephone him as an “unethical attempt to communicate with a represented party.”
Dkt. No. 337 at 32. Even if true, and it absolutely is not, plaintiff’s allegation could not alter the
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III.

Discovery Should Be Denied Because Plaintiff Has Not Raised A Colorable Claim
Of Fraud
For the reasons we have explained, even looking at the facts with the unjustifiable spin

placed on them by plaintiff, they do not give rise to a Rule 60 claim of fraud on the court because
they did not prevent plaintiff from fully or fairly presenting his case or affect the judgment,
which was entered in plaintiff’s favor. But plaintiff’s undisciplined allegations also cannot be
left unanswered – the record evidence shows that they are a distorted view of the procedural
facts, and they unjustifiably disparage good and hard-working attorneys at the Department of
Justice. Thus, even putting to the side the dispositive legal flaw in plaintiff’s motion, plaintiff’s
memorandum falls far short of establishing a “colorable claim” of fraud, a necessary predicate to
discovery. See, e.g., White, 2015 WL 501973, at *2. Allegations based solely on “conjecture
and unsupported assertions” do not demonstrate a colorable claim of fraud. See Walsh v. Hagee,
10 F. Supp. 3d 15, 20 (D.D.C. 2013) (Rule 60(b)(3) motion denied because it was based on
“conjecture and unsupported assertions”); Ramirez v. Dep’t of Justice, 680 F. Supp. 2d 208, 210
(D.D.C. 2010) (same).
A.

The Available Facts Show There Is No Colorable Claim Of Fraud
1.

The Alleged Threats To Mr. Trainor

The evidence demonstrates that DOJ attorneys did not violate the duty of candor or any
other obligation by not informing the Court of the communication between Mr. Trainor and Mr.
Higman. Accordingly, there is no need for discovery.

Court’s liability ruling, the quantum of damages awarded, or the resulting judgment. Plaintiff’s
outrageous suggestion that an altercation between him and two Hells Angels associates could
have been an effort by DOJ to “entrap” him must be rejected for the same reason. Id.
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During the first part of the trial in Tucson, plaintiff called Mr. Higman and questioned
him about his work related to ATF’s investigation of the fire at plaintiff’s house. Plaintiff’s
counsel showed Mr. Higman the ROI prepared by Mr. Trainor in IAD related to ATF’s initial
fire investigation, which was critical of Mr. Higman. Mr. Higman had not previously seen the
ROI. App. 69 (“No, I’m not aware of it. I’ve never seen this before. I wasn’t aware that it even
existed.”). Mr. Higman made it clear that he did not agree with the conclusions reached in the
ROI. App. 70-71.
Mr. Trainor testified immediately after Mr. Higman regarding the ROI on ATF’s
investigation of the fire at plaintiff’s house. On June 13, 2013, Mr. Trainor’s testimony about the
ROI related to the fire investigation was concluded, and the trial record of the testimony of both
Mr. Higman and Mr. Trainor regarding that subject was closed. The first part of the trial
concluded on June 21, 2013. App. 75. Mr. Trainor would return to testify about unrelated
matters when the trial resumed in Washington, D.C. in July.
On June 28, 2013, Mr. Higman called Mr. Trainor and left a brief voicemail message for
him. This voicemail is the extent of what plaintiff claims is a “death or violence threat.” Dkt.
337 at 10. In the voicemail, Mr. Higman alluded to having seen Mr. Trainor’s ROI on the fire
investigation, stated that he was “looking forward to talking,” and stated “[h]ope your family is
doing good, too.” App. 76. Contrary to plaintiff’s patently false assertion, Mr. Higman’s
voicemail message was not “clearly a death or violence threat.” Dkt. No. 337 at 10. Also, as is
plainly evident from the actual audio recording and Mr. Trainor’s own transcription of the
message, App. 75, Mr. Higman did not – as plaintiff falsely states – “repeatedly request[] to meet
Trainor face to face,” ask Mr. Trainor “how’s your health,” or ask “how are your children.” See
Dkt. No. 337 at 11.

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At the time, Mr. Trainor perceived the message as a threat and reported it to ATF. On
Mr. Trainor’s urging, the ATF conducted an investigation into the alleged threat, including
recording Mr. Trainor’s return call to Mr. Higman, without Mr. Higman’s knowledge. In that
July 2, 2013 telephone conversation, Mr. Higman made it clear that he had called only to discuss
Mr. Trainor’s ROI on the fire investigation, and repeatedly denied threatening Mr. Trainor. App.
77-81 (e.g., “It was not a veiled threat and . . . it wasn’t meant that way at all. . . . My only beef
with you is that report . . . and I don’t feel it was professionally done and it draws conclusions
that make me look like I done something improper. . . .”).
On July 22, 2013, the second part of the trial commenced in Washington, D.C. Mr.
Trainor testified for a second time, limited to addressing a separate ROI on the withdrawal of
plaintiff’s undercover credentials, on July 23-24, 2013. During this second appearance as a
witness, Mr. Trainor did not testify about his first ROI on the ATF fire investigation or about Mr.
Higman’s role in the fire investigation. Mr. Higman’s voicemail message and the telephone
conversation between the two men were not raised with the Court.
The available facts demonstrate that the DOJ attorneys did not violate the duty of candor
or any other obligation by not informing the Court of the communications between Mr. Trainor
and Mr. Higman. First, the communications between Mr. Trainor and Mr. Higman did not
violate the exclusion order under Federal Rule of Evidence 615.5 Both Mr. Higman and Mr.
Trainor had concluded their testimony about the ATF fire investigation before Mr. Higman left
his voicemail message. Although they spoke of the ROI during the July 2, 2013 conversation,
they did not discuss the trial, their role as a witness, or the trial testimony on either of the ROIs.
5

The Government invoked FRE 615 at the beginning of trial. See App. 52a-52e; FRE 615 (“At
a party’s request, the court must order witnesses excluded so that they cannot hear other
witnesses’ testimony.”).
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App. 77-81. Because the communications could not affect testimony on a closed subject, there
was no violation of the exclusion order and no requirement that the communications be disclosed
to the Court. Second, although Mr. Trainor describes Mr. Higman’s voicemail message as a
“threat,” review of Mr. Higman’s voicemail message, App. 76, and the July 2, 2013
conversation, App. 77-81, demonstrates that Mr. Higman was not attempting to interfere with
Mr. Trainor’s testimony in this proceeding. Additionally, Mr. Trainor reported the alleged threat
to ATF, and the recording of the July 2, 2013 telephone conversation was obtained as a result of
ATF’s investigation. ATF was the appropriate organization to assist Mr. Trainor in contacting
Mr. Higman regarding his voicemail message and evaluating whether the message was, in fact, a
threat to Mr. Trainor.
2.

Bacon Allegations
i.

Alleged Pressure From Ms. Bacon To Not Re-Open ATF’s
Arson Investigation Related To Plaintiff’s Home

Plaintiff has not shown a colorable claim of fraud relating to his allegations about Ms.
Bacon. There is no evidence or testimony that Ms. Bacon directed Mr. Atteberry or Mr. Canino
to do anything. Nor are there any grounds to allege that Ms. Bacon tampered with witnesses or
evidence. Finally, there is no basis for plaintiff to even suggest that Ms. Bacon filed a false
declaration and was aided in doing so by DOJ attorneys.6
On July 11, 2013, Mr. Atteberry testified in this case before the Court. On questioning
from plaintiff’s counsel regarding ATF’s re-opening of its investigation into the fire at plaintiff’s
house, the following exchange took place:

6

Plaintiff wrongly asserts that “DOJ . . . assisted Bacon to prepare a declaration.” Dkt. No. 337
at 16. Ms. Bacon did not prepare a declaration.
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Q. Did you get any kind of discouragement in any respect from
anyone at ATF with respect to reopening this arson investigation?
A. Yes.
Q. Please explain.
A. When I was seeking guidance to reopen the investigation, I had
a phone conversation with somebody from Counsel's office in ATF
headquarters.
THE COURT: Can you be more specific, Agent? Do you know
who it was?
A. I believe it was Valerie Bacon.
THE COURT: All right. Proceed.
A. I had a phone conversation, and I also believe I talked to her in
person one time when she was in Phoenix, and I believe during the
telephone conversation she made a comment to me that if you,
meaning myself, reopen the investigation that would damage our
civil case.
***
Q. All right. Mr. Atteberry, did Ms. Bacon make any other
comments to you in this similar vein?
A. Not that I recall, but that was the one comment that kind of gave
me pause and struck me as odd that she would say that to me given
the fact that I was the one ultimately responsible for asking for the
case to be reopened and ultimately getting the case reopened. And
I didn’t do anything about it at the time. I just pushed forward and
reopened the case.
App. 59-61 (July 11, 2013 Tr. 2045-2047) (emphasis added).
In his testimony, Mr. Atteberry clearly did not state that Ms. Bacon directed him to do
anything. Instead, he testified that she made a comment that re-opening the investigation would

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damage this case.7 Moreover, he did not view the statement as a direction because he “just
pushed forward and reopened the case.” App. 61. Thus, on its face, Mr. Atteberry’s testimony
refutes plaintiff’s allegation within the Rule 60 motion because he moved forward with
reopening the fire investigation.
The Government’s July 1, 2013 filing, prepared at the Court’s request, demonstrates
beyond cavil that Ms. Bacon did not engage in misconduct or act fraudulently towards the Court.
Dkt. No. 199.8 When contacted about the matter in June and July 2013, Ms. Bacon had no
specific recollection of discussing the Dobyns case with Mr. Atteberry, but did acknowledge that
the conversation could have taken place. Id. at 4. Mr. Atteberry, in a follow-up interview,
described her comment as “an ‘off the cuff comment,’ and stated that he did not consider it to be
a matter that should be reported as improper.” Id. at 5. And, of course, the comment did not
influence Mr. Atteberry, who did not report to Ms. Bacon, and who “pushed forward and
reopened the case.” App. 59-61.
Contrary to plaintiff’s bald assertion, Ms. Bacon did not tamper with any witness or
evidence. Indeed, she purportedly made the comments to Mr. Atteberry and Mr. Canino in
January 2012, over a year before the trial and well before Mr. Atteberry was even identified as a
7

The United States respectfully disagrees with the Court’s characterization, in its initial
decision, of Mr. Atteberry’s testimony as indicating that Ms. Bacon “attempted to convince SAC
Atteberry not to reopen the arson investigation.” Dobyns, 118 Fed. Cl. at 306 n. 25. Mr.
Atteberry did not testify that Ms. Bacon tried to convince him of anything. He simply said that
“she made a comment” and he made it clear that it was just “the one comment.”

8

There is no basis to find that the alleged comment was improper. Ms. Bacon was an ATF
attorney speaking to an ATF employee about a pending case. Commenting on whether the reopening of the fire investigation could affect this case is well within the confines of a discussion
an attorney might have with a fellow employee, particularly given that Ms. Bacon was not in a
position to control Mr. Atteberry’s decision whether to move forward with the investigation. At
any rate, without more, that single comment is not extraordinary, and Mr. Atteberry clearly did
not perceive it that way.
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witness. Thus, the general comment, even if made, could not have been meant to influence the
testimony of any witness. Nor was Ms. Bacon’s comment related to any trial evidence, and she
obviously could not have tampered with any. Plaintiff’s counsel did not raise any allegation of
witness tampering leading up to the trial, nor could he have. As the Court noted in its August
2014 decision, “[n]either party notified the court of these contacts until SAC Atteberry testified
in court.” Dobyns, 118 Fed. Cl. at 306 n.25 (emphasis added).
In sum, Ms. Bacon’s single comment, made over a year before the trial and which was
immediately discounted by Mr. Atteberry, does not constitute a fraud on the Court as defined
under the strict standards of Rule 60(d)(3). As an attorney with ATF, it also was not wrong for
Ms. Bacon to discuss the potential effect of re-opening the investigation on this case with ATF
special agents, where it is clear that she did not act to direct them or coerce them into a position.
Both Ms. Bacon and Mr. Atteberry recognized that she had no authority over the special agents
and the comment, assuming it was made, did not suggest otherwise. Indeed, Mr. Atteberry
considered it an “off the cuff” comment and he ignored it. This one comment plainly was not
directed at the Court, or intended to undermine the functioning of the Court. Accordingly it
could not constitute a fraud against plaintiff under Rule 60(b)(3).
ii.

Mr. Harrington’s Alleged Knowingly False Assertion To The
Court Regarding Ms. Bacon’s Purported Statement

There is simply no basis not to believe Mr. Harrington’s statement, or to conclude that he
knowingly attempted to mislead the Court, that he did not recall hearing of Ms. Bacon’s
comment to Mr. Atteberry until Mr. Atteberry’s testimony. Indeed, Mr. Harrington explicitly
advised the Court during the in-chambers discussion that he had received a large number of emails from plaintiff’s counsel in the months leading up to trial and it was possible that he had
received an e-mail about Ms. Bacon from plaintiff’s counsel. Dkt. No. 199 at 2. In fact, from
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the time he became lead trial counsel on the case on April 5, 2012, until approximately June
2013, Mr. Harrington received more than 400 e-mails from plaintiff’s counsel regarding this
case, many of which were lengthy diatribes. Id. at 3; see also App. 65; Dkt. 337-1 at 5-15, 2022. In the crush of pre-trial activities and then in chambers, the fact that Mr. Harrington could
not recall an e-mail related to Ms. Bacon is completely understandable, and there is no basis to
question the motives behind his statement to the Court. This is especially true given that Mr.
Harrington immediately corrected his inadvertent misstatement in the Government’s July 1, 2013
filing to the Court. This allegation certainly does not support an allegation of misconduct or
fraud under Rule 60(d)(3) or (b)(3).
3.

The Alleged Failure Of Mr. Kiffner And Ms. Bouman To Produce
Audio Recordings

The long-since resolved issue of the Government’s production of two audio recordings
also does not amount to a colorable claim of fraud.
On August 21, 2011, Mr. Kiffner met with witness Matthew Bayer to prepare for Mr.
Bayer’s upcoming deposition. At that time, Mr. Kiffner asked Mr. Bayer about documents
pertaining to the case, and Mr. Bayer informed him of recorded telephone conversations with
plaintiff that he had previously provided to ATF in response to the agency’s request for his
documents. App. 1. At that time, Mr. Kiffner was not aware of the existence of those
recordings, and he asked Mr. Bayer to bring them to his deposition. App. 1, 13.
A copy of the audio recording was provided to plaintiff’s counsel at Mr. Bayer’s
deposition on August 23, 2011. App. 1. Because plaintiff had not received the recordings
before, Mr. Kiffner agreed that plaintiff’s counsel could listen to the recordings during a break in
the deposition and question Mr. Bayer about them. He stated:

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That’s totally fair. I understand that. I frankly was not aware of
them until Mr. Bayer brought them to my attention when we spoke
before the deposition. You can ask whatever questions you feel
necessary.
App. 13.
In a 20-page, single spaced letter dated August 31, 2011, in which plaintiff’s counsel
raised many concerns regarding discovery, he offered that he was “optimistic that we can come
to a resolution and agreement regarding these discovery disputes.” App. 15. Although he
expressed concern that the failure to produce the two audio recordings in a timely fashion
“dramatically and negatively impacted Plaintiff’s case and his rights and opportunities to conduct
full discovery,” plaintiff’s counsel also plainly stated:
Mr. Kiffner, I and my client take you at your word that you
overlooked Civil Division’s obligation to disclose the recordings
and that you did not do so intentionally. I am not alleging any
ethical infraction on the part of Civil Division and I personally do
not believe that one occurred.
App. 19 (emphasis added).
On September 22, 2011, Mr. Kiffner responded to the August 31, 2011 letter by objecting
to the strong language used in that letter, “especially in light of [his] efforts to be forthcoming
regarding the recordings.” App. 1. Mr. Kiffner also explained why the audio recordings had
mistakenly not been produced earlier, and the steps taken to ensure plaintiff had all such
material. App. 1-2.
Although he disagreed that plaintiff suffered any prejudice because of the timing of the
recordings, Mr. Kiffner agreed that “in a good faith effort to remedy the omission,” the United
States would make five witnesses available for additional deposition questioning to cover the
audio recordings. He also proposed a motion for leave to conduct the depositions, and stressed

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that “the Government is making the above proposal in good faith to remedy any perceived
prejudice you represent your client has incurred.” App. 2.
In the consent motion, the United States explained, as Mr. Kiffner had previously to
plaintiff’s counsel, that Mr. Kiffner “discovered that the recordings had been produced by the
agency to the Civil Division, but had been omitted from production to plaintiff when the
agency’s materials were converted for use by the Government in an electronic database.” Dkt.
No. 73 at 2. The consent motion also explained that the recordings were provided to plaintiff’s
counsel at the August 23, 2011 deposition, and acknowledged that “the recordings should have
been produced by the Government with the bulk of defendant’s production.” Id. at 1-2.
Simply put, there was no fraud. There was no misconduct. This was not part of an
“unconscionable scheme.” Mr. Kiffner made a single, temporary mistake, which he corrected
with the consent of plaintiff and approval of the Court. As a result, plaintiff received copies of
the recordings, obtained discovery related to the recordings (at the Government’s expense), and
ultimately introduced the recordings into evidence at trial. Plaintiff’s counsel, in August 2011,
freely stated that he and his client accepted that Mr. Kiffner did not fail to disclose the recordings
intentionally and that he, plaintiff’s counsel, personally did not believe that any ethical infraction
had occurred. There is thus no factual basis for a finding of any misconduct or fraud by Mr.
Kiffner, and discovery on this issue should not be permitted.
4.

The Alleged Failure Of DOJ Attorneys To Discourage Or Correct
Perjury Of Mr. Gillett And Mr. Higman At Trial

Plaintiff’s claim that DOJ attorneys “likely encouraged” perjury is baseless. Dkt. 313 at
4. Plaintiff does not provide any factual support for his allegation, rather it is premised entirely
on far-fetched speculation. It is therefore not a “colorable” fraud claim and not a ground for
Rule 60 discovery.
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5.

Allegations That Mr. Kiffner And Ms. Bouman Failed To Cure Or
Suborned Deposition Perjury By Three ATF Witnesses

Plaintiff’s bald assertion that “Mr. Kiffner and Ms. Bouman failed to cure or suborned
deposition perjury by Mr. Gillett, Mr. Higman regarding the surveillance and suspect status of
plaintiff and also by Los Angeles SAC John Torres,” Dkt. No. 313 at 4, is also groundless
speculation. Plaintiff has not offered – and cannot offer – any factual predicate for these
inflammatory allegations against two honest attorneys and the three witnesses.
6.

Mr. Harrington’s Allegedly False Representations Regarding Two
ROIs And Wrongful Withholding Of Them

The relevant facts demonstrate that Mr. Harrington engaged in no wrongful conduct
related to the ROIs and was, at all times, cooperative and forthcoming regarding the ROIs.
Mr. Trainor’s ROI on the fire investigation was finalized in November 2012. Even
before this ROI was finalized, plaintiff’s counsel had been demanding its production. App. 2930. On January 2, 2013, Mr. Harrington informed him that the Government anticipated
producing the ROI but, because the ROI was being used by ATF in ongoing internal disciplinary
proceedings, it was going to temporarily withhold the report pursuant to the deliberative process
privilege. Mr. Harrington further informed him that the agency would release the document once
the personnel action was concluded and would, in the meantime, make it available for inspection
by plaintiff’s counsel. App. 31-33. On January 16, 2013, the United States made the ROI
available for review by plaintiff’s counsel, and he reviewed it in Phoenix, Arizona. App. 34-36.
Plaintiff, however, did not like the assertion of the privilege and – notwithstanding that he
reported to the Court on February 19, 2013 that “[t]here seems little doubt that plaintiff will have
. . . obtained [the ROI] in time for trial,” Dkt. No. 110 at 4, he filed a motion to compel
production of the ROI on April 22, 2013. Dkt. No. 134. By May 1, 2013, however, ATF’s

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internal personnel proceedings had essentially concluded, and Mr. Harrington produced the ROI
to plaintiff on that date. App. 37. On May 2, 2013, the United States explained in a response to
the motion to compel that the document had been produced because the personnel proceedings
had concluded. Dkt. No. 144. Plaintiff introduced the ROI into evidence and used it in
questioning Mr. Trainor and Mr. Higman.
Given the facts set forth above, there is no basis for a finding of fraud on the Court
regarding this allegation. This was a pre-trial discovery matter which was resolved without the
Court’s intervention. Mr. Harrington consistently apprised plaintiff of the status of the document,
and plaintiff’s counsel was provided the opportunity to view the document in January 2013, and
did so. Finally, of course, as he believed he would, plaintiff’s counsel then received the ROI
prior to trial and used it to examine witnesses.
Furthermore, contrary to plaintiff’s assertion, Mr. Harrington did not make any false
statements about the relevance of the ROI. First and foremost, Mr. Harrington was merely
stating his reasoned legal opinion of the evidence and espousing the legal position of the United
States. Those actions cannot be reasonably viewed as fraudulent. Second, Mr. Harrington was
always consistent in what he told both plaintiff and the Court about his opinion concerning the
relevance of this document. In the Government’s May 2, 2013 response to the motion to compel,
Mr. Harrington stated:
The asserted relevance of the ROI is particularly dubious. The
ROI does not address any of the ATF orders at issue . . ., much less
advise the PRB that there was an apparent violation of such an
order.
Dkt. No. 144 at 4. That statement to the Court was consistent with those in earlier
correspondence, in which plaintiff’s counsel was told that the ROI, while addressing ATF’s
involvement in the fire investigation, was of “marginal relevance” to the case because it did not
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THE COURT: It's not the first time that’s happened, Mr. Carter.
At least in my experience in other cases. Now I’ll just point out
with Counsel, that my expectation is it won’t happen. And I
always use the two strike rule. So the first one’s free. And the
second one I get to keep your phone for a while. So I never get to
the second strike.
MR. REED: I take the batteries out of my phone, Your Honor.
THE COURT: Well that does it. But that’s a little hard with an
iPhone. Let me know when you’re done, Mr. Carter.
THE WITNESS: Trying to turn it off, you know.
(Discussion held off the record.)
App. 53 (06/11/13 Tr. 563).
Mr. Carter’s phone rang for a second time late in the day during his cross-examination by
Government counsel (at approximately 5:45 p.m.).9 The Court treated the matter as innocuous:
(Phone ringing.)
THE COURT: Would you like me to answer instead of you, Mr.
Carter? It could be interesting.
(Laughter.)
THE WITNESS: I'd like to turn that off. I just don’t know how. I
tried once.
MR. REED: Your Honor, Jeff could help him.
THE COURT: Jeff, why don't you actually just take his phone for
the moment. All right, sir. And maybe reduce the volume. Don’t
forget to put it back up at the end.

9

Plaintiff incorrectly states that Mr. Carter’s phone range “during two critical moments of
argument over objections by DOJ to questions that undersigned counsel had posed to Mr.
Carter.” Dkt. No. 337 at 31. The trial transcript plainly refutes that, showing that his phone rang
the second time during a straightforward cross-examination question from Government counsel.
App. 53.
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THE WITNESS: Turn it off for me. I appreciate it, yes.
THE COURT: All right.
App. 54-55. Plaintiff’s paralegal retrieved the phone from Mr. Carter at the request of the Court
and handed the telephone to Mr. Harrington.
With no factual foundation, plaintiff offers the far-fetched accusation that DOJ attorneys
planted the phone on Mr. Carter and, by “using a vibration mode, Harrington was signaling to a
disabled witness to look to defense counsel’s table for visual clues” about how he should respond
to questions. Based on this speculation, plaintiff claims that he should be allowed to obtain the
phone records of Mr. Carter and Mr. Harrington. Dkt. No. 337 at 31-32. This specious
conjecture does not support vacatur under Rule 60. Instead, it demonstrates plaintiff’s
willingness to attack the character of counsel without any reasonable basis.
B.

Plaintiff Cannot Demonstrate Extraordinary Circumstances Required To
Permit Deposition Of High Ranking DOJ Officials

In addition to the reasons set forth above that preclude the discovery plaintiff seeks, the
Court should also deny his request to depose current and former high ranking DOJ officials who
had very little, if any, personal involvement in the litigation of this matter. As a general rule,
absent extraordinary circumstances, high-ranking Government officials are not subject to
depositions regarding official actions. NEC Corp. v. United States, 151 F.3d 1361, 1375-76
(Fed. Cir. 1998) (citations omitted). This rule reflects the practical reality that the discovery
demands of civil litigants, if unchecked by the courts, would quickly impair the ability of senior
Government officials to carry out their statutory responsibilities. In re Cheney, 544 F.3d 311,
314 (D.C. Cir. 2008) (“The duties of high-ranking executive officers should not be interrupted by
judicial demands for information that could be obtained elsewhere.”).

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Plaintiff cannot show any extraordinary circumstances that would justify his request to
depose high ranking DOJ officials in this matter, including (1) United States Attorney General
Eric Holder; (2) former United States Deputy Attorney General James Cole; (3) ATF Director B.
Todd Jones; (4) United States Attorney General for the District of Arizona John Leonardo; (5)
former Assistant Attorney General and Acting Associate Attorney General Stuart Delery;
(6) DOJ Commercial Litigation Branch Director Jeanne Davidson; and (7) DOJ Commercial
Litigation Branch Deputy Director Bryant Snee. See Dkt. 337 at 40-41. No such circumstances
exist. Attorney General Holder had no participation in the litigation of this matter that would
justify his deposition, particularly not on the specious allegations that make up plaintiff’s Rule
60 motion. And while Attorney General Holder is the most glaring example of plaintiff’s
overreach, his requests to depose the other officials named above are also utterly unjustified and
should be denied.
C.

If The Special Master Does Permit Discovery, The Scope Should Be Limited
To Appropriately Safeguard The Attorney-Client Privilege And Attorney
Work Product Protection

If the Special Master determines that discovery is permissible on any of plaintiff’s claims
(and he should not), discovery must be limited in scope in order to safeguard the attorney-client
privilege and attorney-work product protection. Plaintiff’s litany of allegations in his Rule 60
motion contains repeated speculation as to the communications and mental impressions of the
DOJ’s attorneys. In addition, plaintiff requests depositions of a number of DOJ and ATF
attorneys handling and involved in the litigation. To the extent that the Special Master
determines any discovery is necessary, the process of obtaining that discovery will be
complicated by the bar against discovery of privileged matters.

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Discovery, whenever allowed, is defined in scope by Rule 26(b)(1). “Parties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”
RCFC 26(b)(1) (emphasis added). “The attorney-client privilege protects the confidentiality of
communications between attorney and client made for the purpose of obtaining legal advice.” In
re EchoStar Commc’ns. Corp., 448 F.3d 1294, 1300 (Fed. Cir. 2006) (quoting Genentech, Inc. v.
Int’l Trade Comm’n, 122 F.3d 1409, 1415 (Fed. Cir. 1997)). Communications between a
Government agency and Government agency counsel, as well as communications between a
Government agency and attorneys from the DOJ are included within the attorney-client
privilege. Eden Isle Marina, Inc. v. United States, 89 Fed. Cl. 480, 495 (2009); Jicarilla Apache
Nation v. United States, 88 Fed. Cl. 1, 7 (2009). The work-product doctrine protects against the
discovery of material “prepared in anticipation of litigation or for trial by or for another party or
its representative[.]” RCFC 26(b)(3)(A); Eden Isle Marina, 89 Fed. Cl. at 496. The workproduct immunity can protect “documents and tangible things” prepared in anticipation of
litigation that are both non-privileged and relevant. EchoStar, 448 F.3d at 1301 (citing RCFC
26(b)(3)). In order to discover materials protected by the work-product doctrine, the discovering
party must show that they are non-privileged and relevant and that the party has “substantial
need for the materials to prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.” RCFC 26(b)(3)(A)(ii).
Plaintiff’s citation, in its response to this Court’s February 15, 2015 order (Dkt. No. 332
at 5), to dicta in Clark v. United States, 289 U.S. 1, 15 (1933) provides no basis for undermining
the privilege here because, as the Supreme Court explained:
‘It is obvious that it would be absurd to say that the privilege could
be got rid of merely by making a charge of fraud.’ To drive the
privilege away, there must be ‘something to give color to the

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charge’; there must be ‘prima facie evidence that it has some
foundation in fact.’
Clark, 289 U.S. at 15 (citations omitted); see In re Sealed Case, 754 F.2d 395, 399 (D.C. Cir.
1985) (“[a] prima facie violation is shown if it is established that the client was engaged in or
planning a criminal or fraudulent scheme when it sought the advice of counsel . . .” (emphasis
added)). Here, as set forth above, plaintiff offers no prima facie evidence of crime or fraud to
allow discovery of privileged communications, but instead asks the Special Master to indulge
him in discovery as a fishing expedition.
It is obvious that plaintiff seeks discovery of privileged attorney-client communications
and attorney work product. For example, plaintiff proposes discovery to determine if DOJ
attorneys “altered what would have been the trial testimony of Mr. Carter and Mr. Hoover” and
proposes discovery into alleged perjury by Mr. Gillett and Mr. Higman at trial, based upon an
unsupported allegation that DOJ counsel “likely encouraged” it. Dkt. No. 313 at 4. Whatever
discovery might be available into the validity and source of the witnesses’ recollection of the
facts could have been the subject of cross-examination and impeachment at trial. Any discovery
beyond that will necessarily exceed the bounds of Rule 26 by infringing upon the attorney-client
privilege and the privileged status of its attorney work product.
Another example is plaintiff’s proposal of discovery into ATF Deputy Director Thomas
Brandon’s purported decision not to sign the recommendations arising from two reports of
investigation. Plaintiff alleges that the non-signing happened “possibly at DOJ’s instruction for
privilege reasons.” Dkt. No. 313 at 4 (emphasis added). No discovery of DOJ’s possible
instructions given for “privilege reasons” is available to plaintiff because of precisely the
privilege that plaintiff alleges. Plaintiff’s own allegation excludes it from the fraud and crime

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exception because instead of providing facts establishing the alleged privileged communication,
it simply alleges Mr. Brandon’s decision was “possibly at DOJ’s instruction.” Dkt. No. 313 at 4.
CONCLUSION
The United States respectfully submits that, in view of the facts and law raised above, the
Special Master should not allow discovery, or, at minimum, should significantly limit the
discovery plaintiff may take after an appropriate showing by plaintiff.10
Respectfully submitted,
BENJAMIN C. MIZER
Acting Assistant Attorney General

s/ Robert E. Kirschman, Jr.
ROBERT E. KIRSCHMAN, JR.
Director
Commercial Litigation Branch
Civil Division
Department of Justice
Ben Franklin Station
P.O. Box 480
Washington, D.C. 20044
(202) 616-0328
(202) 514-8624 (fax)
e-mail: robert.kirschman@usdoj.gov
March 13, 2015

Attorneys for Defendant

10

Should the Special Master find that discovery is warranted, the United States reserves the
right to take discovery on those issues that the Special Master believes should be open to
discovery.
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