176 FILED Objection to Special Master Report

James B. Reed (AZ Bar No. 014015) Attorneys for Plaintiff Jay Anthony Dobyns

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

CASE NO. 08-700C

(Chief Judge Patricia Campbell-Smith)

PLAINTIFF JAY ANTHONY DOBYNS’ RESPONSE TO THE SPECIAL MASTER’S

REPORT AND RECOMMENDATION DATED JULY 23, 2015

BAIRD, WILLIAMS & GREER, L.L.P. 6225 NORTH 24TH STREET, SUITE 125

PHOENIX, ARIZONA 85016 TELEPHONE (602) 256-9400 FACSIMILE (602) 271-9308

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

TABLE OF CONTENTS Page

TABLE OF CONTENTS……………………………………………………………..………..i

TABLE OF AUTHORITIES………………………………………………………….….…….v

I. Summary of argument……………………………………………………….……….1 .

A. The Standard of Review of the Special Master Report’s findings of fact and conclusions of law is de novo………………………………………………1

B. The Court should entirely reject the Special Master Report for

any of the several independent and sufficient reasons set forth herein………...........................................................................................2

C. The Special Master Report was certain to result in factual and legal error when the Special Master refused to consider instances of misconduct alleged in plaintiff’s November 19, 2014 Rule 60 Motion and in plaintiff’s Rule 60 opening memorandum……………………...3

D. The Special Master Report contains the following factual and

legal error…………………………………………………………………………...4

E. The Special Master had no power to overrule Judge Allegra’s orders……....10 ARGUMENT II. The Special Master improperly disregarded Judge Allegra’s rulings

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

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

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

B. The specific language of Judge Allegra’s prior rulings

ordered that this matter proceed through depositions, discovery and final briefing……………………………………………………16


TABLE OF CONTENTS, Cont’d

Page

C. The Special Master Report contradicted his order for eight depositions without controverting its reasoning.

i. The Special Master ordered depositions based on

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

ii. The Special Master conceded in prior opinions that the unique nature of this Rule 60 inquiry requires investigation and discovery…………………………………………..19

III. The extremely simple nature of the August 28, 2014 Final Judgment

demonstrates why a determination of the trial court to sanction DOJ attorneys would alter or amend the Final Judgment under Rule 60..……….…...21

IV. Plaintiff’s RCFC 56(d) factual declarations are sufficient to prevent summary termination of this Rule 60 proceeding………………………………….22

V. The evidence produced to date supports both the validity of Rule 60(b)(3) theories of DOJ attorney misconduct and the continuation of discovery. A. Plaintiff’s prior memoranda demonstrate clear misconduct and/or

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

B. The evidence produced to date supports both the existence of a conspiracy to withhold threat information and plaintiff’s need to take depositions on that topic……………………………………………..25

VI. The Court should allow plaintiff to take necessary depositions.

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

discovery can be considered complete and summary termination, appropriate. i. The Special Master already ordered, on the parties’

stipulation, that plaintiff has the right to take depositions………….31 ii. Summary termination of Rule 60(b)(3) proceedings is

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



Page iii. Plaintiff requires depositions to prove attorney fraud on the

court, or misconduct or misrepresentation under Rule 60……….33

iv. Attorney depositions are appropriate under these circumstances………………………………………..……………….34

B. Any doubts should be resolved in favor of permitting

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

C. In the alternative to depositions, an evidentiary hearing to determine fraud upon the court, misrepresentation or other Rule 60(b)(3) misconduct is the only appropriate option…………………35

VII. With respect to the Court’s review of evidence, plaintiff should receive all favorable inferences from the evidence produced to date before summary termination of these Rule 60(b)(3) proceedings can occur. A. Rule 56 provides guidance in construing all evidence in

favor of plaintiff, given plaintiff’s resemblance to a party responding to a summary judgment motion………………..……………….36

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

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

VIII. The Court’s assessment of sanctions based on Rule 60(b)(3) fraud,

misrepresentation or other misconduct by DOJ attorneys would alter or amend the August 28, 2014 Final Judgment and thereby satisfy even the Special Master’s limited definition of fraud. A. The imposition of sanctions is an appropriate response to

defense counsel’s misconduct, if plaintiff’s allegations are proven. i. The Court can vacate the Final Judgment and issue

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

ii. Rule 60(b)(3) findings of misrepresentations or misconduct also permit the Court to issue sanctions…………………………….40



Page

iii. Judge Allegra would likely have tacked to the opposite of the Special Master’s deference to the Justice Department’s internal evaluations about what types of threat allegations were required to be reported……………….…..42

B. Court-imposed sanctions payments can be directed to the plaintiff…………………………………………………….………………43

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

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

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

B. An attorney’s violation of his code of conduct is a fraud

upon the court.

i. Lawyers must act with honor as officers of the court at all times……………………………...…………………………..…..46

ii. Any departure from that standard of high moral conduct

for lawyers works a fraud upon the court under Rule 60(b)(3)…...47 C. A mere attempt by the United States Department of Justice to

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

CONCLUSION……………………………………..…………………………….…………….50

CERTIFICATE OF SERVICE………………………………………………………..……….51


TABLE OF AUTHORITIES

Cases: Page(s)

Adams v. Richardson, 351 F. Supp. 636 (D.D.C. 1972)………………………………32 Bell, et al., v. v. Federal Ins. Co., 2007 U.S. Dist. LEXIS 64020 (D.MN. 2007)……………………………………………………………………………….24 BNSF Railway Company v. L.B. Foster Company, 2012 U.S. Dist. LEXIS 117237 (D.NE. 2012)…………………………………………...33 Brooker v. U.S., 107 Fed. Cl. 52 (2012)……………………………………….…….......40 Bynum, et al., v. District of Columbia, 215 F.R.D. 1 (D.D.C. 2003)………………….33 Cardinal Health, Inc., et al., v. Delivery Specialists, Inc., 2011 U.S. Dist. LEXIS 29891 (S.D.FL. 2011)……………………………………….….33 Cerruti 1881 S.A. v. Cerruti, Inc., 169 F.R.D. 573 (S.D.N.Y. 1996)………….………49 Charter Practices International, et al., v. Robb, 2015 U.S. Dist. LEXIS 34111 (D.CT. 2015)………………………………………35,39,49 Citibank, N.A., v. Osorno, 2006 U.S. Dist. LEXIS 64883 (S.D.N.Y. 2006)………….24 Cleveland Demolition Company, Inc., v. Azcon Scrap Corporation, et al., 1986 U.S. Dist. LEXIS 30954 (E.D.VA. 1986)……………………………….…31,48 Commodore-Mensah v. Delta Air Lines, Inc., 842 F. Supp. 2d 50 (D.D.C. 2012)………………………………………….…………...33 Davis v. Calvin, et al., 2008 U.S. Dist. Lexis 116529 (E.D.Ca. 2008)…………..…20,31 Michael Derzack, et al., v. County of Allegheny, et al., 173 F.R.D. 400 (W.D.PA. 1996)…………………………………………………39,41,46,50 Dibella, et al., v. Hopkins, 2002 U.S. Dist. Lexis 19844 (S.D.N.Y. 2002)…….……..32 Dietrick v. Securitas Security Services USA, 50 F. Supp. 3d 1265 (N.D.CA. 2014)…………………………………………………………………..…………37 Dixon, et al., v. Comm. of Internal Revenue, T.C. Memo 2006-190; 2006 Tax Ct. Memo LEXIS 193 (U.S. Tax Ct. 2006)…………………………………..15


TABLE OF AUTHORITIES, Cont’d

Cases: Page(s)

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

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



Cases: Page(s)

H.K. Porter Company, Inc., v. The Goodyear Tire & Rubber Company, Ind., 536 F.2d 1115 (6th Cir. 1976)……………………………………………………………10,23 HSBC Bank USA, Nat’l Assoc., et al., v. Resh, et al., 2014 U.S. Dist. LEXIS 16088 (S.D.W.VA. Hunt. Div. 2014)…………………….…..31

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



Cases: Page(s)

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

St. Regis Paper Co. v. United States, 368 U.S. 208, 229 (1961)………………….…..46 Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277 (8th Cir. 1995)………..…..39



Cases: Page(s)

Takeda Chemical Industries, Ltd., et al., v. Mylan Laboratories, Inc., et al., 549 F.3d 1381 (Fed. Cir. 2008)……………………..40 United States v. Bowen, et al, No. 13-31078 (5th Cir. August 20, 2015)………….13,37 United States v. Cortina, 630 F.2d 1207 (7th Cir. 1980)……………………….………47

Videojet Systems Intl., Inc., v. Eagle Inks, Inc. et al., 2000 U.S. App. LEXIS 31337 (Fed. Cir. 2000)………………………………….…..39.49 White V. Tapella, 876 F. Supp. 2d 58 (D.D.C. 2012)………………………….………37 Wong v. Hawaii Medical Center-West LLC, et al., 2009 U.S. Dist. Lexis 96254 (D.HI. 2009)………………………………..……..………23 Zimmerman, et al., v. Poly Prep Country Day School, et al., 2012 U.S. Dist. LEXIS 78816 (E.D.NY. 2012)…………………………………..36,44,49,50 Statutes 18. U.S.C. 1001(a)……………………………………………………………………2,10,24 18. U.S.C. 1503……………………………………………………………………………28 18. U.S.C. 1512……………………………………………………………………………28 Rules of the Court: Rule 60, Rules of the United States Court of Federal Claims (RCFC)….….Throughout RCFC 56…………………………………………………………………………..22-23,36-37 District of Columbia Rules of Profession Conduct (ER) ER Rule 3.3…………………………………………………………………………………..9 ER Rule 3.4…………………………………………………………………………………..9 ER Rule 4.1…………………………………………………………………………………..9


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


1

Pursuant to Rule 53 of the Rules of the Court of Federal Claims (RCFC), plaintiff

Jay Anthony Dobyns herein objects to the Special Master’s Final Report and

Recommendation dated July 23, 2015, Court of Federal Claims Docket Document

Number 430 (hereinafter “No. __”), incorporating the Special Master’s Opinion and

Order dated June 26, 2015 (No. 411) (NB: in view of No. 430’s incorporation of No. 411,

collectively referred to hereinafter as “Special Master Report”). Plaintiff Dobyns requests

that this Rule 60(b)(3) proceeding continue, and that the Chief Judge reject the Special

Master Report and permit plaintiff to obtain final document discovery and take

depositions of employees of defendant United States, the Bureau of Alcohol, Tobacco,

Firearms and Explosives (ATF) and of the United States Department of Justice (DOJ)

and allow this matter to continue through to final proceedings and closing memoranda.

I. Summary of argument.

A. The Standard of Review of the Special Master Report’s findings of fact and conclusions of law is de novo.

RCFC 53 establishes a de novo standard of review of the Special Master Report:

(f) Action on the Master’s Order, Report, or Recommendations. [….]

(3) Reviewing Factual Findings. The assigned judge must decide de novo all objections to findings of fact made or recommended by a master, unless the parties, with the assigned judge’s approval, stipulate that:

(A) the findings will be reviewed for clear error; or (B) the findings of a master appointed under RCFC 53(a)(1)(A) or (C) will be final.

(4) Reviewing Legal Conclusions. The assigned judge must decide de novo all objections to conclusions of law made or recommended by a master.

Although the Special Master did not make formal findings of fact and conclusions of law,

such are discernable and are objected to in the format set forth herein.


2

B. The Court should entirely reject the Special Master Report for any of the several independent and sufficient reasons set forth herein.

Plaintiff objects to the Special Master Report because the Special Master disre-

garded numerous directives from Judge Allegra to undertake various investigations in

particular form. The Special Master accepted an assignment with full notice of the

requirements to oversee the investigation but then promptly rejected and altered the

parameters of the investigation, finally cutting it off mid-discovery, without valid reasons

supported either by existing facts or controlling law. In the process, the Special Master

harmed the efficiency of the discovery process by limiting discovery just to matters

involving Christopher Trainor. The Special Master’s disregard of express orders of

Judge Allegra also requires the belated conduct of the depositions and regrettably but

predictably, parts of the discovery phase to begin again, at least with respect to Valarie

Bacon’s conduct.

Before beginning the summary of objectionable factual and legal errors

committed in this Rule 60(b)(3) proceeding, plaintiff must point out the false choice –

indeed, an only thinly-veiled threat – that to challenge the Justice Department’s breach

of ethical duties and to allege civil and criminal infractions committed during this lawsuit,

plaintiff must undergo an entirely new trial. This is not in the most remote sense

supported by Rule 60, by any federal law or by Judge Allegra’s instructions for this

proceeding, nor did the Special Master attempt to offer any support for the conclusion.

In so doing, the Special Master Reports attempted to deter plaintiff from further

pursuit of his claims that Justice Department attorneys lied to Judge Allegra, to plaintiff

and his counsel, and also to federal investigators in criminal violation of 18 U.S.C.

1001(a), as part of DOJ’s win-at-all-costs strategy. No such false choice exists between


3

seeking accountability and sanctions against the Justice Department for the conduct

described herein on the one hand, and retaining the victory derived from plaintiff’s and

the Court’s hard work during a three week trial in this matter. The Court should

disregard the Special Master’s unsupported conclusion that all could be lost to plaintiff

by pursuing his Rule 60 motion.

C. The Special Master Report was certain to result in factual and legal error when the Special Master refused to consider instances of misconduct alleged in plaintiff’s November 19, 2014 Rule 60 Motion and in plaintiff’s Rule 60 opening memorandum.

The Special Master committed legal error and fatally prejudiced these Rule 60

proceedings by rejecting Judge Allegra’s standard for fraud on the court and by

ignoring, without explanation or support in the law, Rule 60(b)(3)’s other two prongs:

misrepresentation and other misconduct. The Special Master improperly rejected all of

the bases set forth in plaintiff’s November 19, 2014 Rule 60 motion for indicative ruling

(No. 313), which Judge Allegra granted on December 1, 2014 (No. 316), grounds which

plaintiff repeated in his Special Master Rule 60 memorandum, pp. 7-8 (No. 337).

One particularly critical allegation was the distinct possibility, one certainly worthy

of discovery, that DOJ improperly influenced lead ATF settlement negotiator Ronnie

Carter’s trial testimony, not merely before trial but also by using electronic means during

his testimony. Had Ronnie Carter consistently testified that ATF orders were included

within paragraph ten of the September 20, 2007 settlement agreement between the

parties, not only would plaintiff have won his claim of breach of express terms of the

contract, but plaintiff could have sought damages for his lost benefits of the bargain.

When the Special Master failed to accurately portray the nature of Ronnie Carter’s trial

testimony in his April 7, 2015 order limiting the scope of the proceedings (No. 348,


4

plaintiff filed his April 12, 2015 motion for reconsideration (No.352), explaining both the

testimony of Carter and the potential impact of DOJ’s misconduct, as alleged. The

Special Master refused to consider this issue further and improperly limited the scope of

proceedings to merely the allegations regarding threats against Christopher Trainor. All

of this was incorrect and even rises to the level of clear legal error, especially in light of

Judge Allegra directing that the proceedings should follow plaintiff’s motion.

D. The Special Master Report contains the following factual and legal error.

The Special Master improperly substituted his own judgment and orders for

Judge Allegra’s express and mandatory parameters of this Rule 60 proceeding, without

requesting or receiving from Judge Allegra any authorization to limit the proceeding or

to ignore express directives in existing opinions and orders establishing this proceeding.

1) The Special Master disregarded Judge Allegra’s December 1, 2014, Indicative

Ruling as follows:

a) The Special Master wrongfully refused to investigate conduct

regarding Valarie Bacon:

The record reveals at least two instances of conduct by defendant’s counsel that, in the court’s view, provide indication that fraud on the court has occurred here. [….] Testimony at trial indicated that Valerie Bacon (sic), an attorney in ATF’s Office of General Counsel, attempted to convince SAC Atteberry not to reopen the arson investigation.1

Judge Allegra’s indicative ruling required the investigation of the allegations regarding

Valarie Bacon, but the Special Master disregarded that directive under a flawed

adoption of a different legal standard for fraud on the court.

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


5

b) The Special Master refused to accept Judge Allegra’s designation

in page 4, footnote 4 of his December 1, 2014 Indicative Ruling (No. 316) of the

standard for fraud on the court:

1. The Sixth Circuit has indicated that fraud on the court consists of conduct:

1, On the part of an officer of the court; 2. That is directed to the ‘judicial machinery’ itself; 3. That is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth; 4. That is a positive averment or is concealment when one is under a duty to disclose; 5. That deceives the court.

Demjanjuk v. Petrovsky, 10 F.3d 338, 348 (6th Cir. 1993), cert. denied, 513 U.S. 914 (1994); see also 11 Wright & Miller, supra, at § 2860; 12 Moore's Federal Practice § 60.21(4)(a) (3d ed. 2014).

Judge Allegra’s selection of a definition of fraud on the court was tailored to deal with

attorney misconduct and contained no element of reliance or requirement of alteration

of the trial outcome. The Special Master rejected what should have been the controlling

definition of “fraud on the court”, one that Judge Allegra, in his December 1, 2014, as a

practical matter, required the Special Master to utilize. Instead, the Special Master

improperly adopted a more limiting fraud definition standard in his April 7, 2015 Opinion

and Order (No. 348), utilized in ordinary common law fraud cases:

The word “fraud” has a common law meaning that has always been defined to require that the person said to be defrauded show prejudice from having been deceived. The defrauded entity must show reliance – that it did nor did not do something because of the fraud. E.g., 7 Corbin on Contracts, § 28.14 (rev. ed. 2002).

The Special Master had the option of declining this very important assignment, or

else seeking from Judge Allegra a variance from the legal standards imposed upon this


6

Rule 60(b)(3) proceeding. Instead, the Special Master accepted the task but

immediately changed the scope of the inquiry from a judicially-intrinsic “fraud on the

court” standard as defined by Judge Allegra, to a common law fraud proceeding. By

doing so, the Special Master materially prejudiced plaintiff’s rights and made the

eventual dismissal of this action a foregone conclusion. Logically extrapolated, the

Special Master’s April 7, 2015 Opinion and Order made clear that he did not believe

these proceedings should have been ordered, adopting a definition of fraud and

rejecting the rest of Rule 60(b)(3) in a manner supportive of that conclusion. In so doing,

DOJ attorneys received carte blanche to escape meaningful discovery of attorney

misconduct as long as the witnesses ignored threats and held firm to truthful testimony.

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

Special Master incorrectly analyzed the facts of this matter by failing to acknowledge:

i) any new findings of attorney fraud, misrepresentation or other misconduct would

require the issuance of a supplemental trial court opinion, which an altered or amended

trial court judgment would identify and adopt; ii) the issuance of any sanctions against

the Justice Department would have to be specifically noted in a supplemental or

amended trial court opinion and adopted in an altered and amended trial court

judgment; iii) if proven, suborned perjury of witness Ronnie Carter, the lead negotiator

for the September 20, 2007 settlement agreement, would require additional, limited

testimony as to whether the 2007 agreement included ATF Orders, with the Court

potentially awarding lost benefit of the bargain damages and thereby altering and

amending the judgment; and iv) the issuance of sanctions against DOJ in favor of

plaintiff Dobyns would have altered the Judgment’s monetary award in plaintiff’s favor.


7

2) The Special Master ignored Judge Allegra’s express instruction to utilize

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

basis for investigation. As a result, the Special Master improperly obstructed discovery

into DOJ misconduct and wrongly terminated this Rule 60(b)(3) proceeding.

a) Without an enabling order from Judge Allegra, the Special Master

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

60(b)(3) containing two other grounds for Rule 60(b)(3) relief besides fraud on the court,

and refused to allow plaintiff to establish proof of DOJ misrepresentation or other Rule

60 misconduct. Judge Allegra’s Order establishing the Special Master’s powers states:

“[t]he following procedures shall govern, inter alia, the gathering of further evidence in

this case, particularly insofar as it relates to the potential that one or more of defendant’s

attorneys may have committed fraud on the court under RCFC 60.”2 The Special

Master ignored and rewrote those critical procedures, without grounds or authority.

b) The Special Master’s duty to follow the directives of Judge Allegra’s

February 23, 2015 Order were mandatory, and not discretionary with the Special

Master. Paragraph 15 of the Order states:

Consistent with RCFC 53(b)(2) and the provisions herein, the assigned judge hereby specifies in the paragraphs that follow: (A) the special master’s duties, including any

investigation or enforcement duties, and any limits on the special master’s authority under RCFC 53(c);3

Paragraph 21 of the Order establishing duties of the Special Master expressly states:

21. The special master will make findings assisting the assigned judge in determining whether defendant’s attorneys, in

2 Order, Dobyns v. United States, February 23, 2015, No. 335, p. 1 3 Id., p. 4 (emphasis added).


8

the conduct of this case, effectuated a fraud upon the court under RCFC 60(d)(3). As may be necessary, the special master may also consider whether there are other grounds for relief from a final judgment in this case under RCFC 60, including the existence of fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party under RCFC 60(b)(3).4

RCFC 60(b)(3) makes clear that misrepresentation or other misconduct were grounds

available to the Special Master to investigate in this proceeding:

Rule 60. Relief From a Judgment or Order. [….] (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: […] (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (emphasis added)

Despite these clear directives from Judge Allegra, the Special Master determined

that he possessed the discretion to ignore: (i) the February 23, 2015 Order establishing

his duties; (ii) the obligations and the express language of Rule 60(b)(3); (iii) Judge

Allegra’s December 1, 2014 Indicative Ruling; and (iv) the Federal Circuit Court’s

remand order. The integrity of these Rule 60 proceedings were materially and

improperly altered as a result. When plaintiff objected to these defects in the Special

Master’s conduct of the proceedings, instead of addressing these errors, the Special

Master marginally admonished plaintiff’s counsel. These Rule 60 proceedings must

now be continued in a timeframe well beyond what would have been required, had the

Special Master carried out the duties expressly assigned to him.

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

enumerated allegations of misconduct set forth in plaintiff’s November 19, 2014 (No.

4 Id., p. 6 (emphasis added).


9

313) Motion for Rule 60 Relief, and thereby disallowed investigation, discovery and

memoranda on those topics. 5 The Special Master did so out of the incorrect reasoning

that none of those allegations, if proven, affected the final judgment under Rule 60,

despite that (a) this was not Judge Allegra’s standard for fraud on the court, and (b)

plaintiff’s allegations implicated the other two prongs of Rule 60(b)(3), i.e.,

misrepresentation and other misconduct by DOJ attorneys.

DOJ’s actions, as alleged, violate standards of the proscribed Rule 60(b)(3)

misconduct which Judge Allegra requested the Special Master investigate. Plaintiff

alleges that such 60(b)(3) conduct standards include violations of:

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

Rule 3.4 - Fairness to Opposing Party and Counsel.(a)(b)(c)(d)(e) (f)((1)(2))

Rule 4.1 - Truthfulness in Statements to Others. (a) and (b)

Rule 8.3 - Reporting Professional Misconduct. (a)(b) and (c)

Rule 8.4 – Misconduct. (a)(b)(c)(d)(e)(f)(g) 4) The Special Master improperly cut off discovery by refusing to allow

depositions on even the single remaining topic that the Special Master permitted for

investigation, plaintiff’s allegations of threats against Christopher Trainor by Charles

Higman and David Harrington, and did so in the face of uncertain compliance by the

Justice Department with document production obligations. Judge Allegra and the

5 The parties agreed that the scope of proceedings would include plaintiff’s enumerated bases in his Rule 60 motion and in Judge Allegra’s December 1, 2014 indicative ruling:

During the telephonic status conference held by the court on March 3, 2015, the parties expressed their agreement that the allegations described in plaintiff’s Rule 60 Motion, ECF No. 313, will guide the special master’s inquiry into this matter. Plaintiff filed yesterday a memorandum elaborating on the allegations found in his Rule 60 Motion.

Special Master Order, March 10, 2015, p. 12 (No. 340).


10

Federal Circuit Court of Appeals concluded that, at minimum, allegations that (1) retired

ATF Group Supervisor Charles Higman and certain DOJ Civil Division attorneys

attempted to intimidate witness and ATF Internal Affairs Division (IAD) Agent

Christopher Trainor, and (2) former ATF Office of Chief Counsel attorney of record

Valarie Bacon attempted to obstruct ATF’s 2012 re-opening of the arson investigation of

Jay Dobyns’ residence, merited full investigation for potential fraud on the court or

misrepresentation or other misconduct under Rule 60. Plaintiff contends that fraud on

the court occurred as a result of DOJ lawyers’ now-documented agreement to withhold

from Judge Allegra the allegations of Higman’s threat upon Trainor, an effort led by trial

counsel David Harrington and approved by then-Commercial Branch Director Jeanne

Davidson, and that more than sufficient evidence of alleged threats by Harrington

against Trainor exist to conduct depositions.6 Evidence produced to date documents

that attorney Harrington violated federal criminal statute 18 U.S.C. 1001(a) with his

intentional false statements to Judge Allegra and to Office of Professional Responsibility

(OPR) federal investigators on the subject of Valarie Bacon. Depositions are essential.

E. The Special Master had not power to overrule Judge Allegra’s orders.

The conduct of this proceeding was set by the trial judge; even defendant’s prior

invocation during these proceedings of H.K. Porter Company, Inc., v. The Goodyear

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


11

Tire & Rubber Company, Ind., 536 F.2d 1115 (6th Cir. 1976) establishes that Judge

Allegra, not the Special Master, regulated these proceedings: “the scope of discovery is

within the sound discretion of the trial judge.” Id. at 1119.

Judge Allegra’s December 1, 2014 indicative ruling leaves little doubt that: (1) he

wanted to know of claims of witness intimidation during trial; (2) the parties should take

evidence on the issue of potential threats; and, (3) if DOJ lawyers intentionally withheld

such information, he would have sanctioned offending attorneys. Judge Allegra had an

expectation and right to rely on DOJ attorneys truthfully reporting misconduct to allow

him to conduct inquiry and issue sanctions, if appropriate. The absence of such

disclosures injures the integrity of courtroom proceedings, including eliminating the

opportunity to explore any other potential instances of witness intimidation or tampering.

Adverse findings against lead trial counsel David Harrington are certain even

without plaintiff’s depositions of ATF agents Trainor or Machonis, who are anticipated to

testify that they heard Harrington twice-threaten Trainor’s career if Trainor reported to

Judge Allegra the fact of Charles Higman’s threatening voicemail, left the same day that

Trainor found a construction cone in his SUV exhaust pipe. Plaintiff also seeks to

depose Higman as to whether Harrington conferred with Higman (1) before the June 30,

2013 threatening voicemail from Higman to Trainor and simultaneous appearance of the

construction cone in Trainor’s SUV exhaust pipe (“Item 1”), or (2) before the subsequent

nine minute call with Trainor, in which Higman used legalistic terms as part of walking

back his implied threat to Trainor and his family (“Item 2”).7 If Harrington engaged in

7 In its response to the Special Master’s June 26, 2015 advisory opinion, defendant recited portions of Higman’s deposition and trial testimony where Higman referred to “case law” supporting the absence of ATF jurisdiction to investigate the arson at


12

Item 1, then he may have committed the crime of facilitating the intimidation of a federal

witness, and if he engaged in Item 2, then his actions assisted to cover up the threat or

act of intimidation. In this context, the appearance of three criminal defense attorneys to

defend the ordered depositions of four government attorneys is understandable. 8

As to whether DOJ attorneys had anything to do with Charles Higman’s call to

Christopher Trainor, combined with a construction cone in the exhaust pipe of Trainor’s

SUV, the Special Master’s termination of discovery made certain that plaintiff would

never learn DOJ’s role. Plaintiff considered an immediate “appeal” to Judge Allegra to

prevent the use of time in conducting a misdirected proceeding, but because Judge

Allegra was still available to correct Special Master error, plaintiff proceeding with the

Rule 60 investigation despite the Special Master’s improper limits on the proceeding.

While the Special Master left such matters to be handled as DOJ personnel

issues, it was not the purpose of this Rule 60 proceeding, as Judge Allegra made clear

in his December 1, 2014 indicative ruling and in his February 23, 2015 Order

establishing the Special Master’s duties, to leave to DOJ the discipline of its own

attorneys. This Court is in charge of its courtroom and trials, and Judge Allegra intended

this proceeding to bring accountability to DOJ attorneys for violating the Court’s trust.

plaintiff’s house. That Higman used legalistic terms at his depositions and trial after conferring with DOJ Civil Division attorneys is exactly plaintiff’s point. Plaintiff alleges that David Harrington, at minimum, may have improperly conferred with Charles Higman before the nine minute telephone call between Higman and Trainor, instructing Higman on how to deflate the previous voicemail threat and construction cone intrusion. 8 Attorneys specializing in white collar criminal defense were hired by DOJ attorneys Harrington, Niosi, Onyema and Bouman (formerly ATF’s Office of Chief Counsel), to defend their depositions, evidencing a facial concern about potential criminal liability.


13

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

Machonis are necessary, and plaintiff is entitled to ask questions of those witnesses.

To these allegations and justifications for depositions, plaintiff has also alleged

the likelihood that former ATF Office of Chief Counsel attorney of record Rachel

Bouman obstructed ATF’s criminal investigation of Higman, which ATF closed without

interviewing Higman, by convincing ATF’s Michael Gleysteen to reject Trainor’s

allegations of threats by Higman as unfounded. Evidence produced to date includes

ATF statements to Trainor that DOJ’s defense of this lawsuit prevented ATF from

interviewing Higman. Bouman’s deposition, along with Gleysteen’s, would clarify

whether yet another obstruction of justice by ATF related to this action occurred. If so,

pursuant to the legal standards set forth in this memorandum, such conduct would

qualify as fraud on the court, and also as defendant and attorney misconduct sufficient

to alter and amend the August 28, 2014 Judgment. The Court could monetarily sanction

DOJ, potentially payable directly to plaintiff for, inter alia, his time in this proceeding.

Recent federal cases regarding misconduct by Justice Department attorneys

allow this Court to join in sending a message to the United States that DOJ attorneys

must abide by the same ethical rules and laws imposed on all other attorneys:

The district court also found that cooperating defendants called to testify by the government lied, an FBI agent overstepped, defense witnesses were intimidated from testifying, and inexplicably gross sentencing disparities resulted from the government’s plea bargains and charging practices.

United States v. Bowen, et al, No. 13-31078 (5th Cir. August 20, 2015). As prior

pleadings demonstrate, this action has generated significant interest in the public and

press. The Court’s effective pursuit of government attorney misconduct would


14

emphasize to the federal government and the Justice Department that civil and criminal

laws apply equally to government and private attorneys, whether DOJ agrees or not.

The Special Master’s conclusion was that, as long as an intimidated witness

demonstrates the fortitude and personal courage to testify truthfully, no injury to the

integrity of the proceedings occurred and no fraud upon the court took place. Plaintiff

contends that Judge Allegra would have disagreed with the Special Master in light of the

scope of the proceedings described in the February 23, 2015 Order, the intent of the

fraud and misconduct proceedings as discussed in the December 1, 2014 indicative

ruling, and the express language of Rule 60(b)(3). Plaintiff objects to the Special Master

Report’s rejection of directives in those enabling orders by preventing depositions and

to the Report’s termination of these Rule 60 proceedings.

ARGUMENT

II. The Special Master improperly disregarded Judge Allegra’s rulings and

the remand of the Federal Circuit as to the scope, purpose and

discovery guidelines for this Rule 60 proceeding.

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

by the Special Master’s disagreement with prior rulings as to the scope

of proceedings, with discovery and advocacy opportunities to prove

that fraud on the court, misrepresentation or misconduct occurred.

The Court should enforce Judge Allegra’s directives, ones the Special Master

rejected, in order to allow discovery and investigate plaintiff’s allegations:

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


15

Dixon, et al., v. Comm. of Internal Revenue, T.C. Memo 2006-190; 2006 Tax Ct. Memo

LEXIS 193, at 8 (U.S. Tax Ct. 2006). The Dixon decision guides the Special Master to

follow Federal Circuit’s remand directives for conduct of the Rule 60 proceedings

described in Judge Allegra’s December 1, 2014 indicative ruling:

The "law of the case" doctrine requires a decision on a legal issue by an appellate court to be followed in all subsequent proceedings in the same case. Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993). [….] Upon remand of the case, a corollary of the law of the case doctrine, known as the rule of mandate, requires the lower court to implement both the letter and the spirit of the appellate court's mandate. The rule of mandate is similar to, but broader than, the law of the case doctrine and prohibits the lower court from disregarding the appellate court's explicit directives. Herrington v. County of Sonoma, supra at 904.

Dixon, supra, at 8 (allowing the misconduct proceeding to continue).

Judge Allegra’s October 1, 2012 order denying the parties’ cross-motions for

summary judgment invoked the doctrine of law of the case in barring the re-visitation of

prior rulings by the trial court regarding the direction of trial level proceedings:

See Dobyns, 91 Fed. Cl. at 417-18; see also SGS-92-X003 v. United States, 74 Fed. Cl. 637, 655 (2007). These arguments are no more persuasive the second time around.3 Indeed, they are among several found in defendant's briefs that now, and for any future trial, are governed by law-of-the-case considerations. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16, 108 S. Ct. 2166, 100 L. Ed. 2d 811 (1988); see also Alli v. United States, 105 Fed. Cl. 440, 2012 WL 1708307, at *4 n.3 (Fed. Cl.).

Dobyns v. United States, 106 Fed. Cl. 748, 750 (2012). Judge Allegra made clear in his

December 1, 2014 Rule 12.1 indicative ruling, and the Federal Circuit agreed in

remanding the matter, that the trial court, where the alleged misconduct occurred, is

where the investigation should occur, as opposed to DOJ personnel proceedings:


16

The alleged fraud occurred in this Court, and this Court is the proper, if not the only, forum in which the matters raised in the present petition can, in the first instance, be determined. See Ex Parte Bradley, 7 Wall. 364, 372, 74 U.S. 364, 372, 19 L. Ed. 214, 217 (1868)

In Re E. I. du Pont de Nemours - Benlate Litigation, 918 F. Supp. 1524, 1540 (MD.GA.

1995). The Special Master Report incorrectly defers to DOJ disciplinary mechanisms.

B. The specific language of Judge Allegra’s prior rulings ordered that this

matter proceed through depositions, discovery and final briefing.

The Special Master’s April 7, 2015 Order listed the duties and directives set forth

in Judge Allegra’s February 23, 2015 Order and December 1, 2014 indicative ruling:

At Page 1: “The undersigned special master was appointed to investigate allegations of fraud upon the court in this case under Rules of the Court of Federal Claims (RCFC) 60 and other grounds for relief from final judgment. See Order, ECF No. 334; Order, ECF No. 335.” At Page 4: “By his order of February 23, 2015, after the Chief Judge’s appointment of the undersigned as a special master that day, Judge Allegra authorized the special master to ‘investigate and enforce the matters discussed in paragraph 21 herein.’ See Order at 4, ECF No. 335.”

At Page 4: Paragraph 21 indicated that the special master was to make findings as to whether defendant’s attorneys, in the conduct of this case, effectuated a fraud upon the court under Rule 60(d)(3). Id. at 6. If necessary, the special master was also to consider whether there were other grounds for relief from a final judgment in this case under Rule 60, including the existence of fraud, misrepresentation, or misconduct by an opposing party under Rule 60(b)(3). Id. At Page 5: “Rule 60(b)(3) provides that this court may relieve a party from a final judgment for fraud, misrepresentation, or misconduct by an opposing party. RCFC 60(b)(3). Rule 60(d)(3) provides that the other provisions of Rule 60 do not prevent this court from setting aside a judgment for fraud on the court. RCFC 60(d)(3).”


17

Paragraph 4 of Judge Allegra’s February 9, 2015 Order (No. 330) states: “the special

master will exercise the full range of authority permitted by the court’s rules, to and

including: (i) the taking of discovery of all forms, including depositions and all forms of

electronically stored information (ESI)….”

Paragraph 17 of Judge Allegra’s February 23, 2015 Special Master Order states:

17. Pursuant to RCFC 53(c)(1), the special master may: (A) regulate all proceedings; (B) take all appropriate measures to perform the assigned duties fairly and efficiently; and (C) exercise the assigned judge’s power to compel, take, and record evidence, including the resolution of any issues regarding the admissibility of evidence.

Judge Allegra’s Order establishing the Special Master’s duties states at paragraph 22:

“Consistent with this mandate, the central functions of the special master are to”: (A) Gather evidence to include documents of all forms (including all forms of electronically store (sic) information (EDS)); audio recordings, the taking of oral or video depositions to include the depositions of any attorney, or other government officer or other individuals subject to this order; and the taking of oral testimony […]

And finally, page six of the Court’s December 1 Indicative Ruling, paragraph 3, states:

If the Federal Circuit remands the action, the court will allow both parties an opportunity to present argument, as well as relevant evidence and other testimony, before ruling on a motion for reconsideration under RCFC 60. See Hazel-Atlas Glass Co., 322 U.S. at 251; 11 Wright & Miller, supra, at § 2870.

The Special Master Report breaches or contradicts these duties, powers and

expectations awarded to and accepted by the Special Master from Judge Allegra.

C. The Special Master Report contradicted the order for eight depositions without controverting its reasoning.

i. The Special Master ordered depositions based on need and the

stipulation of plaintiff and defendant to conduct depositions.


18

At page 13 of the parties’ Joint Status Report filed April 10, 2015 (No. 350),

defendant United States conceded the need for depositions:

The United States concurs with plaintiff that the depositions of the following five individuals is appropriate.

a. Christopher Trainor; b. Daniel Machonis (who has recently left ATF); c. David Harrington; d. Corinne Niosi; and e. Rachel Bouman. We also concur with plaintiff regarding the stated length of the depositions of Mr. Machonis, Mr. Harrington, Ms. Niosi, and Ms. Bouman. [….] We also request that Mr. Trainor’s deposition be scheduled for approximately seven hours, in light of the central role he plays regarding this subject matter. Beyond those five depositions, we additionally propose to depose plaintiff, Jay Dobyns [….] The United States anticipates that the six depositions could be taken shortly after the conclusion of document production and, barring any significant scheduling conflicts with a witness, could be conducted during the course of a single week.

Id. Thereafter, by order dated April 13, 2015 (No. 353), the Special Master ordered the

appearance of eight witnesses total for depositions:

Upon consideration of the Joint Status Report it is ORDERED: The parties, as agreed, may take the depositions of the following persons:

a. Christopher Trainor b. Daniel Machonis c. David Harrington d. Corinne Niosi e. Rachel Bouman

6. Additionally, the parties may take the depositions of Charles Higman and Veronica Onyema.

7. Defendant may take the deposition of plaintiff.

[….] At the conclusion of the depositions, the parties will be heard as to whether any additional proceedings (including


19

discovery) are warranted and how the special master should conclude his duties.

Special Master Order, April 13, 2015 (No. 353). The parties moved to postpone the

depositions in light of defendant’s delayed document production. The Special Master’s

order continuing the depositions merely postponed them until discovery was complete.

See April 29, 2015 Order of Special Master (No. 367) (“I will invite counsel for the

parties to set new dates for the depositions in consultation with the special master.”)

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

The Special Master’s April 7, 2015 Opinion and Order, p. 12, (No. 348) noted the

need for discovery of the accusations regarding threats against Agent Trainor:

However, a different issue is presented as to the behavior of the DOJ attorneys who may have learned of the Higman threat and failed to bring it to the court’s attention, or even worse, threatened Trainor’s career when he suggested informing the court. The attorneys’ conduct may well have threatened the administration of justice, although it is unclear at this stage how such a threat might have impacted the judgment in this case or plaintiff’s ability to present his case. This matter must be investigated by the special master.

The Special Master soberly characterized the gravity of the allegations of attorney

misconduct in his June 19, 2015 Opinion and Order (No. 406):

[W]hile it is not denominated as one of the factors in the case quoted above, it surely is of significance that this is serious litigation involving a specific claim of witness intimidation by lawyers for the United States that lead a judge to require an investigation by a special master.

Id. at 11. In that same June 19, 2015 Opinion, the Special Master concluded:

In this case, the court found that a witness who had given detailed testimony about the failures of the ATF to protect a former agent, thereby harming the government’s case, may have been threatened with damage to his career if he told that he had been threatened. While the truth of that assertion is yet to be tested, if true, it may constitute the


20

crime of obstruction of justice. Moreover, it was the judge himself who initiated the investigation of these events to see if they warranted setting aside a final judgment. Surely that allegation, which the judge determined to be serious enough to warrant extraordinary action, can be said to be alleged “nefarious” misconduct if that is in fact the standard. (emphasis added).

Id. at 13. Plaintiff should have the opportunity to conduct the seven depositions previously

ordered, now that DOJ has finally produced basic documents, which the Special Master’s April

29, 2015 order identified as the cause for delay in the conduct of depositions. The Justice

Department should not be able to use its delay in production and failed assertion of the

deliberative process privilege in order to avoid depositions. Kingston, et al., v. Nelson, et

al., 2008 U.S. Dist. LEXIS 69745, 4 (D.UT. C.Div.2008); Davis v. Calvin, et al., 2008

U.S. Dist. Lexis 116529, at 3 (E.D.CA. 2008).

The Special Master’s order permitting depositions was consistent with Judge

Allegra’s published opinion denying defendant’s motion to dismiss plaintiff’s complaint:

[A]s noted by the drafters of Rule 26, “[t]he purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters which may aid a party in the preparation or presentation of his case.” Fed. R. Civ. P. 26(b) advisory committee notes, 1946 amend.; see also Osage Tribe of Indians of Okla. v. United States, 84 Fed. Cl. 495, 497 (2008). The year after these comments were written, the Supreme Court emphasized that “[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). For discovery to have that leveling effect – particularly, where there is an initial informational imbalance among the parties, and, especially, where one of the litigants is a government agency that has privileged access to information – a claimant must not be required, ab initio, to aver all or nearly all the facts subservient to its claims. See

al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009) [….]

Jay Dobyns v. United States, 91 Fed. Cl. 412, 426-427 (2010). Plaintiff submits that

Rule 60(b)(3) depositions and final briefing should proceed for the reasons to follow.


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III. The extremely simple nature of the August 28, 2014 Final Judgment

demonstrates why a determination of the trial court to sanction DOJ

attorneys would alter or amend the Final Judgment under Rule 60.

The language of the August 28, 2014 Final Judgment, Document No. 288, is

simple, making this Rule 60 analysis equally non-complex. The Final Judgment states:

In the United States Court of Federal Claims No. 08-700 C

JAY ANTHONY DOBYNS v. JUDGMENT THE UNITED STATES Pursuant to the court’s Opinion, filed August 25, 2014, IT IS ORDERED AND ADJUDGED this date, pursuant to Rule 58, that the plaintiff recover of and from the United States, damages in the amount of $173,000.00. Hazel C. Keahey Clerk of Court August 28, 2014 By: s/Debra L. Samler Deputy Clerk

This Rule 60 proceeding could alter or amend the Judgment in several ways.9

First, any findings of fact, conclusions of law or descriptions of sanctions regarding DOJ

attorney misconduct would appear in a re-issued trial opinion, with a new date, or in a

supplemental trial opinion; either change would be set forth in a final judgment as an

alteration or amendment to the judgment.

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


22

Second, if the Court sanctions DOJ attorneys and orders moneys to be paid to

the court registry or to the plaintiff, such would be noted in an amended or altered final

judgment. Third, if the trial judge determined that fraud on the court, misrepresentation

or misconduct by DOJ occurred, such witness intimidation and tampering by DOJ, then

the underlying damages to plaintiff might increase as part of continuing violations by

DOJ of the covenant of good faith and fair dealing found in the September 16, 2014

Trial Opinion to have existed in the parties’ September 20, 2007 settlement agreement.

Plaintiff must pursue discovery to argue that the Trial Opinion must be

supplemented and the Final Judgment alter or amended, and that sanctions against

DOJ attorneys should issue, with sanctions and other damages paid to plaintiff. The

Special Master Report has taken those opportunities entirely from plaintiff, thereby

substantively voiding much of Judge Allegra’s December 1, 2014 Indicative ruling and

February 23, 2015 Order10, despite Rule 60(b)(3)’s language.

IV. Plaintiff’s RCFC 56(d) factual declarations are sufficient to prevent

summary termination of this Rule 60 proceeding.

Plaintiff Jay Dobyns and undersigned counsel have submitted declarations

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

56(d) sufficient to allow depositions to proceed. Plaintiff submits that an analogous

analysis of the Special Master Report under RCFC 56(d) is appropriate, given that

10 Judge Allegra’s February 23, 2015 reference in his Order to Rule 60 violations by a “party”, i.e., the United States, includes fraud upon the court attempted by civil division attorneys. The Supreme Court has held that an attorney’s knowledge and behavior is imputed to the client: “each party is deemed bound by the acts of his lawyer-agent and is considered to have "notice of all facts, notice of which can be charged upon the attorney.” Link v. Wabash Railroad Company, 370 U.S. 626, 633-34, 1962) (citing Smith v. Ayer, 101 U.S. 320, 326, 25 L. Ed. 955).


23

termination of this proceeding will de facto enter judgment by leaving the present

August 28, 2015 judgment in place without alteration or amendment:11

If "matters outside the pleading are presented to and not excluded by the court, [a motion to dismiss for failure to state a claim] shall be treated as one for summary judgment." Fed. R. Civ. P. 12(b). See Darring v. Kincheloe, 783 F.2d 874 (9th Cir. 1986). Pleadings in this case were accompanied by depositions. Summary judgment was procedurally proper.

First Pacific Bancorp, Inc., et al. v. Bro, et al., 847 F.2d 542, 545 (9th Cir. 1988). The

same principles establishing a right under RCFC 56 to complete necessary discovery

before a trial court action is terminated, support plaintiff’s Rule 60 deposition requests:

(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.

Federal courts require the completion of discovery before allowing summary

judgment. Wong v. Hawaii Medical Center-West LLC, et al., 2009 U.S. Dist. Lexis

96254, at 5-6 (D.HI. 2009). Where an RCFC 56(d) declaration proves that a deposition

would aid in defense of a summary judgment motion, the deposition should be allowed:

Plaintiff [...] averred that summary judgment would be premature in part because Plaintiff has taken no depositions. [….] Although summary judgment can be "an effective device to protect parties

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


24

from burdensome discovery," it should not be used to prevent a party from presenting its case. (citations omitted).

Bell, supra, at at 3; Citibank, N.A., v. Osorno, 2006 U.S. Dist. LEXIS 64883, 2 (S.D.N.Y.

2006) Plaintiff’s declarations filed with this response contain requisite detail to support

continued discovery: “if it appears from the nonmoving party's affidavits that the party

cannot present facts essential to justify the party's opposition, the Court may refuse to

order judgment or may order a continuance to permit additional discovery. Fed. R. Civ.

P. 56(f).“ Bell, et al., v. Federal Ins. Co., 2007 U.S. Dist. LEXIS 64020, 2 (D.MN. 2007);

Polk v. Local 16, Int’l Union Bricklayers and Allied Craftsmen, 1995 U.S. App. LEXIS

9758, at 4 (6th Cir. 1995). DOJ cannot use truncated discovery as a basis to avoid

depositions. In Re: E. I. du Pont de Nemours, 918 F. Supp.at 1549.

V. The evidence produced to date supports both the validity of Rule 60 misconduct theories and the continuation of discovery.

A. Documents produced to the Court in defendant’s privilege log

demonstrate clear Rule 60 misconduct by Civil Division in this matter.

Documents produced to the Court to date, referred to herein by DOJ’s Bates

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

on the court, misrepresentation or misconduct. Those emails prove that DOJ conspired

to withhold threat information from the Court and demonstrate that attorney Harrington

violated 18 U.S.C. 1001(a) in making false statements to Judge Allegra and to OPR

investigators of no prior knowledge of Bacon’s attempted obstruction of justice. Those

pleadings are incorporated by reference, with relevant sections designated as follows:

Plaintiff Jay A. Dobyns’ May 27, 2015 Reply In Support of Motion to Enlarge Page Limits and Response to Defendant’s Motion to Strike (No. 386).

II. Plaintiff objects to redactions of evidence that establish that Civil

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


25

DOJ_CIVIL00000509-510: DOJ_CIVIL00000288-289 DOJ_CIVIL00000392 DOJ_CIVIL00000291-300

III. Harrington misrepresented his knowledge of Bacon’s obstruction.

DOJ_CIVIL00000354-356 DOJ_CIVIL00000359-364

Plaintiff Jay A. Dobyns’ May 22, 2015 Notice of Objection to Defendant’s May 12, 2015 and May 21, 2015 Claims of Inadvertent Disclosure (No. 384) DOJ_CIVIL000000291-300 (Harrington makes false and deceptive statements to federal investigators in violation of 18 U.S.C. 1001 (a);

DOJ_CIVIL00000430 (Niosi displays her venom for Trainor, an antipathy consistent with her inability to recall Harrington’s threats to Trainor’s career: “I’m not going to stand for him taking another shot at me.”). DOJ_CIVIL00000445 (Niosi concedes: “[t]he call demonstrates that Higman is angry that Trainor issued a report that criticized Higman’s work”, i.e., motive) DOJ_CIVIL0000491 (Snee’s email dated July 20, 2013, 11:51 AM) DOJ_CIVIL0000497-498; DOJ_CIVIL0000497 (Emails to and from Jeanne Davidson, getting her approval to withhold the threat information from Judge Allegra). B. The evidence produced to date supports the evidence of conspiracy to

withhold threat information and plaintiff’s need to take depositions.

Exhibit C hereto contain evidence from defendant’s document production proving

DOJ’s successful attempt to pressure Trainor not to inform Judge Allegra of the threats.

Trainor email to ATF (DOJ_CIVIL000000479) states:

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

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

Harrington and Bouman then jointly attempted to have Gleysteen dissuade Trainor from revealing his information to the judge (DOJ_CIVIL000000484):


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Harrington: “he [Trainor] should be instructed by an appropriate superior not to contact the judge or make any submission in the Dobyns case.”

In his response to OPR questioning, Harrington wrote:

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

Harrington emailed his supervisors Bryant Snee and Donald Kinner

(DOJ_CIVIL0000092):

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

As set forth in Exhibit C hereto, Harrington conceded that the Higman voicemail,

if a threat, constituted a crime (DOJ_CIVIL0000087):

A threat by Higman (if here had been one) would be a criminal matter… If there was some threat that was an attempt to influence trial testimony, this would be a matter to raise with the Court.

Also set forth in Exhibit C hereto, Snee expressed the seriousness of Higman’s

conduct and that Judge Allegra would want to be informed (DOJ_CIVIL0000093):

What the best case which could be made that we should bring it to the Court’s attention? That witness X in this case believes he has been threatened about his testimony in this case by witness Y from this case. Arguably, that may be relevant for the judge to know… Another way to look at it is - if you were in the judge’s shoes, would you want to know of the situation? What if (heavens


27

forbid) Witness X actually harmed witness Y or family, would we still say we had no duty to disclose to court? Additionally, to what extent is our view of this matter informed by our assessment that this is not a real threat? Is that a proper subject for us to evaluate? Stated differently, if we thought it was a truly real threat, would we adopt the same approach?

After discussing Higman’s threat, Snee then discussed attacking Trainor on the

stand to overcome claims of Higman’s threat (DOJ_CIVIL000000484):

…more aggressively cross-examine(ing) him to highlight inadequate nature of his work; that he has personal interest because his professional abilities/judgment/ competence are at issue; personal bias in favor of Dobyns? Which is (sic) better approach from an ‘optics’ perspective[?]

Harrington emailed Davidson (DOJ_CIVIL0000497-498) and dismissively

described the topic of Higman’s threat, failing even to mention the orange construction

cone that Trainor found in the tailpipe of his SUV at his home after receiving Higman’s

voicemail. Nevertheless, despite the deficiencies in Harrington’s disclosures, to

Davidson, Davidson had enough information in order to act. And yet, by email dated

July 21, 2013 (DOJ_CIVIL0000497), Davidson dismissed the Higman’s threat against

Trainor and recommended against informing the Court:

The only part of this that could potentially be relevant is Higman’s criticism of Trainor for not interviewing him during his investigation. That point is helpful to the extent Allegra is influenced by the ROI. But that point probably would have come out anyway. Good luck tomorrow.

These emails coordinate a no-threat mindset and are a cautious but deliberate

effort to overcome dissent among attorneys regarding disclosure of the threat

information to Judge Allegra. The emails document that ATF’s Michael Gleysteen was

used to tamp down the threat with Trainor and to create a “no threat” declaration,


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drafted entirely by DOJ attorneys with no apparent input by Gleysteen, to “serve the

needs” of DOJ’s position. DOJ, the Office of Inspector General (OIG) and the Special

Master repeatedly focus on one statement from Trainor in his OIG interview conducted

more than a year following the threat events, for their conclusion there was no threat

and therefore no need for investigation or reporting, and a mid-stream email that

Higman might have been intoxicated. Those are two statement by Trainor taken out of

context and used to dismiss all of the complaints and threat notification by Trainor, a

matter which plaintiff would demonstrate from depositions and in closing argument.

What is clear is that Higman asked Trainor to interview him and then alter his

report of investigation. Such evidence tampering, coupled with intimidation and threats,

was required to be reported to the trial judge as obstruction of judicial proceedings

under 18 U.S.C. 1503 and 18 U.S.C. 1512:

Tampering with a witness, victim, or an informant; whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to, (1) influence, delay, or prevent the testimony of any person in an official proceeding; (B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding.

Trainor withheld the threat information for a year in order to allow Judge Allegra

to file his opinion, and in that year, saw that Higman did not act on his threats. In the

interim, Trainor’s family suffered fear and anxiety, and the issue is what DOJ should

have done at the time, with what they knew then. By investigating those threats, Judge

Allegra and plaintiff would have determined if Civil Division (Harrington) had anything to

do with Higman making the call to Trainor, and DOJ (Harrington and Bouman) had

anything to do with ATF closing down the investigation without interviewing Higman.


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As for allegations about Valarie Bacon, attorneys Davidson, Kinner, Corrine Niosi

and P. Davis Oliver were made aware of the allegations by Harrington’s March 21, 2013

email, 1:46 pm (DOJ_CIVIL00000354; response to plaintiff’s counsel’s email with the

Subject: “ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted

obstruction of justice; Dobyns v. U.S.; 08-700c, Importance: High”, To: Davidson,

Kinner, Niosi and Oliver). Harrington was aware of Bacon’s attempted obstruction

before trial, as demonstrated in his email to Davidson. DOJ_CIVIL00000359-364):

Jeanne, this is not a new allegation. Additionally, assertions about the “re-opening” of an ATF investigation are nonsense.

In response to plaintiff’s counsel’s April 9, 2013 6:55 pm email, Subject: “Scope

of defendant actors; Referral to OIA of attempted obstruction of justice by Valerie

Bacon; Dobyns v. U.S.; 08-700c (DOJ_CIVIL00000360-364), Harrington emailed to

Rachel Bouman, Niosi and Oliver, again pre-trial, on April 10, 2013, 10:23 pm

(DOJ_CIVIL00000359): “Here is last night’s e-mail from Mr. Reed. Is there an “active

inquiry into Valarie Bacon’s attempts to obstruct justice” as Mr. Reed alleges? If so, by

whom and what is its current status? Thanks.”

Nevertheless, during in-chambers discussion and mid-trial on June 17, 2013,

Judge Allegra asked Harrington if allegations of Bacon’s statement had come up before

trial. Harrington denied any prior knowledge of Bacon’s attempted obstruction. In his

response to OPR, Harrington does not correct his misrepresentations to this court. He

thus re-affirmed his earlier false statement made in-chambers on June 17, 2013 to

Judge Allegra, he did not recall any such allegations regarding Valerie Bacon

(DOJ_CIVIL00000359). Harrington made several false statements to OPR, including:


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“I have no specific recollection of actions taken upon receiving the March 21 and April 9 2013 e-mails from Mr. Reed.”

Falsifying information to OPR federal investigators is a violation of 18 U.S.C. 1001 (a).

The following is a summary of the documents found in Exhibit C, demonstrating a

concerted effort by Civil Division to withhold information and make material misrepre-

sentations in violation of Rule 60.

Trainor believed that Higman threatened him

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

Trainor’s ATF supervisor Cooper was supportive of such interviews of Higman,

but was blocked by supervisors. (DOJ_CIVIL 0125) ("Hey Chris- was hoping to

have more info for u tonight but unfortunately instead of moving fast to take this

to Arizona, the DADs and ADs have slowed it down and want to revisit in the

morning- not a good idea to me”)"

ATF’s Gleysteen’s response was continually inadequate, according to Trainor. (DOJ_CIVIL 0125) (“I told AD Gleysteen that I completely disagreed with the reasoning behind the decision to not interview Higman.”)

Trainor’s attorneys confirmed that Judge Allegra at least needed eventual

notification. (DOJ_CIVIL 0125)

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

DOJ improperly influenced Trainor’s ATF Supervisor Michael Gleysteen to

conclude that no threat occurred:

Depositions are intended to establish that Bouman guided Gleysteen to his conclusion of “no threat.” Bouman was an intermediary between DOJ and ATF and getting Gleysteen on message and, plaintiff believes, played a role in ATF closing the investigation of Higman without Higman being interviewed. Bouman’s admission of DOJ’s influence on Gleysteen’s law enforcement conclusions for DOJ’s purposes is documented. (DOJ_ATF1019 - From: Bouman, Rachel A. To: Harrington, David; Niosi, Corinne Subject: Gleysteen declaration Attachments:


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Declaration of Michael Gleysteen 7-19-13 (Dobyns).docx – “I haven’t run this by him yet, but does this serve our purpose?”).

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

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

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

DOJ_CIVIL 0092; DOJ_CIVIL 0081) As part of the freefall of objective discussion, Harrington and his team knew that Judge Allegra would be upset if the threats were withheld, and they conspired to do so anyway.

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

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

Niosi also knew that Judge Allegra would want the threat information.

(DOJ_CIVIL 0243 From Niosi, Corinne To Harrington, David Subject Fw:

Higman Issue – “I don’t want to muddy it up but we need to consider Bryant’s

question about whether Allegra would want to know about this against the

backdrop of the Valarie Bacon thing and Trainor’s horse trading testimony.”)

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

Various DOJ attorneys believed the threat allegations should be disclosed to Judge Allegra:


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

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

(DOJ_CIVIL 0243) Attorneys Snee, Harrington and Niosi discussed discussed that they were not qualified to assess threat risk and had been caught by Judge Allegra in misconduct already (“Additionally, to what extent is our view of this matter informed by our assessment that this is not a real threat? Is that a proper subject for us to evaluate? [….] What if (heavens forbid) Witness X actually harmed witness Y or family, would we still say we had no duty to disclose to court? We will have to flag this issue for Jeanne”)

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

(DOJ_CIVIL 0085) Even Harrington began to express doubt about withholding Higman’s calls from Judge Allegra. (“We could steer clear of the "threat" and issues about the adequacy of ATF’s response, which really have nothing to do with our case.”)

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

(DOJ_CIVIL 0089) DOJ’s deliberations revealed doubts that should have been resolved by reporting the threat to Judge Allegra. Harrington emailed the legal team:

Rachel said that ATF thinks the "safer" course is to raise matters affirmatively. ATF is still vague about what exactly they think should be raised with the court. [….] And if we go only part way, do we run the risk that Judge Allegra thinks we have not told him something that he considers to be important?

Bouman continued to evidence doubt about withholding the threats. (DOJ_ATF 1079) and (DOJ_ATF 1040 - “I will suggest that David file something this weekend”)

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


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Higman Issue – “I’ve known Jeanne Davidson for almost 20 years, and I trust her judgment“)

(DOJ_ATF 0965 – “On Jul 20, 2013, at 1:51 PM, "Bouman, Rachel A." <RacheI.Bouman@atf.~ov> wrote: “Ultimately, the decision will be made by Jeanne Davidson” [….] “I also told David that the Judge is already suspicious of us and we don’t want to look that way again.”)

Nevertheless, DOJ attorneys planned for every contingency in withholding the information.

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

(DOJ_CIVIL 0061) Harrington: “and then we tell the Court that Trainor has his

own personal complaint about ATF handling of a supposed threat against him,

that we have looked at it, that he needs to address it internally at ATF…” (And

DOJ_CIVIL 0068)

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

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

VI. The Court should allow plaintiff to take necessary depositions.

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

can be considered complete and summary termination, appropriate. i. The Special Master already ordered, on the parties’ stipulation,

that plaintiff has the right to take depositions.

“A party may take another party's duly noticed deposition in person as a matter of

right. Fed. R Civ. P. 30.” Davis v. Calvin, et al., 2008 U.S. Dist. Lexis 116529, at 3


mailto:RacheI.Bouman@atf.~ov

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

al., 1986 U.S. Dist. LEXIS 30954, at 3 (E.D.VA. 1986). The Special Master heard

argument regarding depositions, including defendant’s agreement to permit five

depositions, and ruled that plaintiff is entitled to take depositions when document

discovery is complete. HSBC Bank USA, Nat’l Assoc., et al., v. Resh, et al., 2014 U.S.

Dist. LEXIS 16088, at 3 (S.D.W.VA. Hunt. Div. 2014). Because the Special Master did

not have grounds to vacate his prior order permitting eight depositions, and defendant

did not move to vacate the order, depositions should proceed. See Haldeman, et al., v.

Golden, et al., 2008 U.S. Dist. LEXIS 35327, at 11-12 (D.HI. 2008).

ii. Summary termination of Rule 60(b)(3) proceedings is facially improper where plaintiff has not had the opportunity to take any witness depositions whatsoever.

Federal common law is clear that summary judgment should not be entered until

discovery is complete: “First, the motion was clearly premature. It was filed before

discovery was complete and even before plaintiffs were able to depose Hopkins. On this

basis alone, the motion must be denied.” Dibella, et al., v. Hopkins, 2002 U.S. Dist.

Lexis 19844, at 2 (S.D.N.Y. 2002) (citing See Hellstrom v. U.S. Dep't of Veteran Affairs,

201 F.3d 94, 97 (2d Cir. 2000); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d

Cir. 1995); Fed. R. Civ. P. 56(f); Adams v. Richardson, 351 F. Supp. 636, 637 (D.D.C.

1972) (“In an earlier proceeding, defendants' motion to dismiss or for summary

judgment was denied in order to allow plaintiffs to engage in and complete discovery.

Such discovery, inter alia, included a very lengthy deposition of defendant Pottinger.”)

Deposition allowance is a core prerequisite to entry of summary judgment. First

Pacific Bancorp, Inc., supra, at 545; Irani v. Palmetto Health, et al., 2015 U.S. Dist.


35

LEXIS 81104, at 8 (D.S.C. 2015). The D.C. Circuit denies summary judgment if

discovery has been inadequate.12 Bynum, et al., v. District of Columbia, 215 F.R.D. 1, 4-

5 (D.D.C. 2003); Commodore-Mensah v. Delta Air Lines, Inc., 842 F. Supp. 2d 50, 53

(D.D.C. 2012). Similarly, the Court of Federal Claims denies summary judgment

motions if not enough evidence has emerged from discovery. Mundy et al., v. United

States, 22 Cl. Ct. 33, 36 (1990); International Fidelity Ins. Co., 27 Fed. Cl. at 111;

Marshburn v. United States, 20 Cl. Ct. 706, 709 (1990).

iii. Plaintiff requires depositions to prove attorney fraud on the court, or misconduct or misrepresentation under Rule 60.

Plaintiff Dobyns’ right to take depositions is essential to his ability to avoid entry

of summary judgment. BNSF Railway Company v. L.B. Foster Company, 2012 U.S.

Dist. LEXIS 117237, 1-2 (D.NE. 2012). The district court for Nebraska ruled that a

respondant to a summary judgment motion is entitled to take necessary depositions:

“BNSF has established that it cannot present facts essential to its opposition to Foster's

summary judgment motion without having the opportunity to depose Foster's corporate

designee and Sidney Shue [….]” Id. at 2. Federal common law is replete with instances

of federal courts denying entry of summary judgment so that respondents can take

critical depositions. Cardinal Health, Inc., et al., v. Delivery Specialists, Inc., 2011 U.S.

Dist. LEXIS 29891, at 4 (S.D.FL. 2011) (“After completion of Mr. Orie's deposition, the

Defendant may file a supplement to its Opposition to the Plaintiffs' Motion for Summary

12

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


36

Judgment”); Gardias v. The California State U., et al., 2010 U.S. Dist. LEXIS 97575, at 2

(N.D.CA San Jose Div. 2010) (“Gardias shall appear for his deposition [….] The

deadline for hearing summary judgment motions is re-set”); Harris v. NCO Financial

Systems, et al., 2009 U.S. Dist. Lexis 15037, 3 (D.C.E.D.PA. 2009) (“Discovery […]

including plaintiff's deposition, is not complete. Upon completion, summary judgment

may again be moved.”)

iv. Attorney depositions are appropriate under these circumstances.

Depositions of attorneys should be allowed as necessary before summary

judgment is considered. Nielsen, et al., v. TIG Insurance Co., 2006 U.S. Dist. LEXIS

49002, at 15 (D.MT. Miss.Div. 2006) (“Defendant filed its summary judgment motion

[….] but more importantly it filed its opposition to Plaintiff's January 27 motion [….]

supported by the depositions of the above attorneys involved in the underlying action.”).

B. Any doubts should be resolved in favor of permitting plaintiff to take the previously-ordered depositions.

The Court should resolve any doubts in favor of permitting the plaintiff to take the

ordered depositions before summarily terminating this Rule 60 proceeding. Murray v.

Dillard Paper Co., et al., 1999 U.S. Dist. LEXIS 22630, 4 (E.D.VA. 1999); see Marion v.

City of Philadelphia et al., 1998 U.S. Dist. LEXIS 11579, 3 (E.D.PA. 1998) (“I will

dismiss defendant's motion without prejudice […] so that the depositions of the city

employee defendants may be completed.”); Neeb-Kearney & Co., Inc. v. Dept. of Labor,

et al., 1992 U.S. Dist. LEXIS 7123, 2 (E.D.LA. 1992) (“to resolve those cross-motions

for summary judgment, the parties shall complete depositions”).

In the face of summary judgment, federal law requires flexible and broad

evidentiary relevance determinations in favor of the conduct of depositions. Quaker


37

Chair Corporation v. Litton Business Systems, Inc., 71 F.R.D. 527, 530-531 (S.D.N.Y.

1976). The Court should not adopt the Special Master Report’s termination of

proceedings where the Report illogically extrapolates from half-completed discovery:

[D]efendant's opposition rests merely upon the asserted futility of further discovery […] these contentions are without merit. […] It is precisely for the purpose of testing the truth of such state-ments that the opportunity for live cross-examination is pro-vided. [….] it seems inappropriate to deny plaintiff the oppor-tunity to depose Messrs. Schneiderman, Tischio, and Silver.

Id. at 531-532. The Quaker Chair decision supports a plaintiff such as Jay Dobyns, who

has no access to witnesses in order to file Rule 56(f) affidavits. Id. at 533-534. (“Plaintiff

must complete its depositions.…”).

C. In the alternative to depositions, an evidentiary hearing to determine

fraud upon the court, misrepresentation or other Rule 60(b)(3)

misconduct is the only appropriate option.

Plaintiff’s request to take depositions is particularly appropriate in light of the

normal conduct of an evidentiary hearing for Rule 60(b)(3) allegations of fraud. Charter

Practices Int’l, v. Robb, 2015 U.S. Dist. LEXIS 34111, 2 (D.CT. 2015); In Re: E. I. du

Pont de Nemours and Company, 918 F. Supp. at 1540 (“This Court has the power, the

authority, and the jurisdiction to investigate allegations of a fraud on the Court and a

fraud on the judicial system”); Martin v. Automobili Lamborghini Exclusive, Inc., 307

F.3d 1332, 1335 (11th Cir. 2002). Termination of discovery should lead to an evidentiary

hearing as an unavoidable alternative, unless good cause exists. Zimmerman v. Poly

Prep Country Day School, 2012 US Dist. LEXS 78816 26-27 (EDNY 2012).


38

VII. With respect to the Court’s review of evidence, plaintiff should receive

all favorable inferences from the evidence produced to date before

summary termination of these Rule 60(b)(3) proceedings can occur.

A. Rule 56 provides guidance by construing all evidence in favor of plaintiff, given plaintiff’s resemblance to a party responding to a summary judgment motion.

The Court is guided by the common law to view evidence to date in plaintiff’s

favor under a Rule 56 analysis: “’[w]e review the district court's grant of summary

judgment de novo, examining the record in the light most favorable to Koger.” Koger v.

Bryan, 523 F.3d 789, 796 (7th Cir. 2008), citing Peate v. McCann, 294 F.3d 879, 882

(7th Cir. 2002); Wong, supra at 4 (“court must draw all reasonable inferences on behalf

of nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587”); see also Posey v.

Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) ("the evidence

of [the nonmovant] is to be believed”); Riverdale Mills Corp., v. U.S., et al., 337 F. Supp.

2d 247, 252 (D.MA. Cen. Div. 2004) (“[t]he Court must view the entire record in the light

most hospitable to the non-moving party and indulge all reasonable inferences in that

party's favor.”) (citing O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993)); Evans,

et al, v. Port Authority Trans-Hudson Corp., et al., 2003 U.S. Dist. LEXIS 28259, at 10

(D.N.J. 2009) (“In deciding a motion for summary judgment, a court must view the facts

in the light most favorable to the nonmoving party and must resolve any reasonable

doubt as to the existence of a genuine issue of fact against the moving party.”) (citing

Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982)); Marion, supra, at 3 .


39

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

weighing evidence to determine whether to summarily terminate this

Rule 60(b)(3) proceeding.

The Court should not assess credibility of evidence in the middle of discovery.

Haldeman, supra, at 5 (“The court does not make credibility determinations or weigh

conflicting evidence at the summary judgment stage. Id.”); White v. Tapella, 876 F.

Supp. 2d 58, 64 (D.D.C. 2012); in accord; Nielsen, supra at 5. Despite that rule, the

Special Master Report disregards the non-deposition statements of Trainor and ignores

the fact that no statements or depositions of Agent Machonis or attorney Onyema were

taken, while accepting in total the self-serving and self-preserving statements of

attorneys Harrington and Niosi.13 These mid-discovery credibility assessments are

expressly discouraged by the federal common law of Rule 56:

"In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determina-tions, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997).

Dietrick v. Securitas Security Serv. USA, 50 F. Supp. 3d 1265, 1268 (N.D.CA. 2014);

Hidalgo v. Winding Road Leasing Corp., 2013 U.S. Dist. Lexis 66623, 2 (EDNY 2013).

VIII. The Court’s assessment of sanctions based on Rule 60(b)(3) fraud,

misrepresentation or other misconduct by DOJ attorneys would alter or

amend the August 28, 2014 Final Judgment and thereby satisfy even the

Special Master’s limited definition of fraud.

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

counsel’s misconduct, if plaintiff’s allegations are proven.

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


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

The trial judge may vacate the August 28, 2014 Judgment and alter and amend it

under Rule 60 to order sanctions against DOJ, with or without payment to plaintiff. See

Hartman, supra at 37; Florida Evergreen Foliage, 135 F. Supp. 2d at 1287 (“federal

court retains inherent authority to set aside a federal judgment for "fraud on the court,"

[…] sanctions and other criminal penalties can be imposed for criminal contempt and

other litigation-related crimes.”); In Re: Rafail Theokary, 468 B.R. 729, 749 (Bk. E.D.PA.

2012) (citing Chambers, 501 U.S. at 44, “courts have inherent power to set aside their

own judgments upon finding that they were fraudulently obtained.”).

Federal courts also have inherent power to sanction misconduct in proceedings.

Martin, et al., v. Automobili Lamborghini Exclusive, Inc., et al., 307 F.3d 1332, 1336-

1337 (11th Cir. 2002). The inherent power of courts to sanction misconduct has been

held to apply to attempts, successful and otherwise, to commit fraud upon the court.

Videojet Systems Int’l, Inc., v. Eagle Inks, Inc. et al., 2000 U.S. App. LEXIS 31337, at 2-

3 (Fed. Cir. 2000); In Re: E. I. du Pont de Nemours and Co., 918 F. Supp. at 1540; in

accord, Peter Kiewit Sons', Inc., v. Wall Street Equity Group, Inc., et al., 2012 U.S. Dist.

LEXIS 69577, at 14 (D.NE. 2012) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44

(1991); Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 280 (8th Cir. 1995).

This inherent power to control conduct and secure proper respect for truth and

candor is a broad authority and intrinsic to the fabric of integrity in the courtroom14:

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


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Neither statute nor the Federal Rules of Civil Procedure supplant, however, the implicit, inherent power of the court -- perhaps the mother source of the authority and responsibility of the courts to control the conduct of litigation -- to restrain excesses of the participants and to preserve the integrity of the judicial process. Chambers, 501 U.S. at 46; Sanctions, Chapter 4, Inherent Power of Courts, §§ 4.01-02.

Derzack, et al., v. County of Allegheny, et al., 173 F.R.D. 400, 411 (W.D.PA. 1996); in

accord, Ian Owen Sharpe et al., v. United States, 112 Fed. Cl. 468, 473 (Cl. Ct. 2013).

“The court's inherent power is broad and can be called upon not only to fill-in the

interstices between particular rules of conduct, but also may be referred to in addition to

said rules where appropriate.” Derzack, 173 F.R.D. at 412. Whatever limitation the

Court perceives in its power to effectuate a just result in light of DOJ misconduct is

overcome by an inherent judicial authority to keep the courtroom a sacred legal place.15

ii. Rule 60(b)(3) findings of misrepresentations or misconduct also permit the Court to issue sanctions.

If a party’s “conduct did not amount to fraud [on the court], courts may use

sanctions in cases involving bad faith that cannot be otherwise reached by rules or

statutes.” Takeda Chemical Industries, Ltd., et al., v. Mylan Laboratories, Inc., et al.,

549 F.3d 1381, 1391 (Fed.Cir. 2008) (citing Chambers, 501 U.S. at 46). “That

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


42

determination lies within the discretion of the trial judge, ‘who is in the best position to

know how severely [a party's] misconduct has affected the litigation.’" Takeda Chemical

Industries, Ltd., et al., v. Mylan Laboratories, Inc., et al., 549 F.3d 1381, 1390-1391

(Fed.Cir. 2008); Heath v. Walters, 1998 U.S. App. LEXIS 18263, at 4 (7th Cir. 1998).

This inherent ability is a core part of the Court of Federal Claims’ need to

regulate its courtroom and the participation of DOJ attorneys who appear in every case.

Danny Sellers et al., v. United States, 110 Fed. Cl. 62, 67 (Cl. Ct. 2013) (“The court has

"inherent powers enabling it to manage its cases and courtroom effectively and to

ensure obedience to its orders." Pac. Gas & Electric Co. v. United States (PG&E), 82

Fed. Cl. 474, 480 (2008); see In re Bailey, 182 F.3d 860, 864 (Fed. Cir. 1999).

The Court of Federal Claims has been on point in punishing attempted fraud

upon the court: “only the inherent power could reach an ‘entire course of conduct’ that

‘evidenced bad faith and an attempt to perpetrate a fraud on the court". Sharpe, 112

Fed. Cl. at 479; in accord, Emma C., et al., v. Eastin, et. al., 2001 U.S. Dist. Lexis

16119, 3 (N.D.Ca. 2001) (“Courts also have the inherent power to impose sanctions for

abusive litigation practices in any proceeding in federal district court.”) (citing Chambers

v. NASCO, Inc., 501 U.S. 32 (1991); F.J. Hanshaw Enter., Inc. v. Emerald Dev., Inc.,

244 F.3d 1128, 1136 (9th Cir. 2001); Ian Owen Sharpe et al., v. U.S., 112 Fed. Cl. 468,

480 (Cl. Ct. 2013) (“plaintiffs have demonstrated "conduct which abuses the judicial

process.” [….] “Such conduct is the proper subject of an exercise of this court's

discretion to ‘fashion an appropriate sanction’ pursuant to its inherent power.").

The exercise of the inherent power of the court to police and deter misconduct is

not merely an option but an obligation of the Court to exercise:


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The court's obligation is to protect not only litigants who may suffer from abusive litigation practices of their adversaries, but also to promote the proper function of a fair and effective judicial system which, while it is adversarial, need not also be callous, uncivil, sneaky or booby-trapped. When it becomes so, the courts must act decisively.

Derzack, 173 F.R.D. at 411. The Special Master Report abdicates that duty.

iii. Judge Allegra would likely have tacked to the opposite of the Special Master’s deference to the Justice Department’s internal evaluations about what types of threat allegations were required to be reported.

DOJ cannot decide the validity of Higman’s threat or whether to deny to Judge

Allegra the ability to test the Higman’s credibility and criminality. That is the law:

No party, be it an individual or a corporation, can unilaterally decide the evidence. Put in layperson's terms, DuPont cheated. And it cheated consciously, deliberately and with purpose. DuPont has committed a fraud on this Court, and this Court concludes that DuPont should be, indeed must be, severely sanctioned if the integrity of the Court system is to be preserved.

In Re: E. I. du Pont de Nemours, 918 F. Supp. at 1556. If the words “attempted to” are

added to the quotation, and if depositions prove that Harrington assisted Higman to

intimidate or cover up threat to Trainor, then DOJ can be substituted for DuPont in that

excoriating language.16 DOJ’s knowledge that Trainor testifed while sitting with

documentation of Higman’s threat is particularly odious to the integrity of proceedings:

[I]f DuPont is to be believed, it caused and allowed that data and those documents, or part of them, to sit undisclosed in a box in the courtroom.[….] Were it not for Petitioners having discovered the existence of that data and those documents

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

Pont de Nemours, 918 F. Supp. at 1557. Hartman, supra at 42 (“We are protective of the integrity of our judicial process and concerned about deterrence. We are "entitled to send a message, loud and clear." Aoude v. Mobil Oil Corp., supra at 1122.”)


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and having brought them in for this Court to review, DuPont's fraud on this Court would have gone undiscovered.

In Re: E. I. du Pont de Nemours and Co., 918 F. Supp. at 1554.

Denying Judge Allegra the ability to investigate threats by Higman and DOJ, and

Civil Division’s possible involvement in Higman’s threat, interfered with Judge Allegra’s

ability to police his courtroom17 and issue sanctions.18 In Re: E. I. du Pont de Nemours,

918 F. Supp. at 1555. That compromise of judicial procedure is a fraud on the court.19

B. Court-imposed sanctions payments can be directed to the plaintiff.

While Rule 60, in order to alter or amend the Judgment, does not require that

plaintiff receive an additur to his damages award or a direct payment of sanctions

entered against DOJ, nevertheless, that option is within the trial judge’s discretion.

17 Fraud on the Court is a fraud that harms the integrity of the judicial process. Standard Oil Co. of Cal. v. United States, 429 U.S. 17, 97 S. Ct. 31, 50 L. Ed. 2d 21 (1976); Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245, 64 S. Ct. 997, 88 L. Ed. 1250, 1944 Dec. Comm'r Pat. 675 (1944).

Hartman, supra at 30.

18 As the Court of Appeals for the Ninth Circuit said in Brandt v. Hickel, 427 F.2d 53, 57 (9th Cir. 1970) (also quoted in Heckler v. Comty. Health Servs., Inc., supra at 61 n.13), "To say to these appellants, 'The joke is on you. You shouldn't have trusted us,' is hardly worthy of our great Government."

Hartman, supra, at 28. 19 Civil Division’s attorneys’ feigned confusion about Judge Allegra’s expectations that they would report threats on a witness continued the fraud on the court:

This Court gives no credence to DuPont's arguments that the Court's orders did not encompass the Alta data and documents, or that those orders were vague, or that DuPont reasonably misunderstood the orders. In fact, those arguments seem little more than a continuation of the fraud on this Court.



45

In Re: E. I. du Pont de Nemours and Co., 918 F. Supp. at 1558. A sanctions payment

to plaintiff, if ordered by the trial judge, would clearly alter or amend the Final Judgment.

The costs involved even just in this proceeding makes such a directed payment

to plaintiff, appropriate.20 Zimmerman, supra at 25. Plaintiff has acted as much on the

Court’s behalf as his own in gathering evidence of DOJ misconduct, and yet, on the

brink of proving potentially stunning breaches of ethics, the Special Master may cut off

processes described in the February 23, 2015 order and December 1, 2014 Opinion.

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

does not require proof of prejudice to plaintiff or proof of an altered trial

outcome in order to satisfy Rule 60(b)(3).

A. Mere compromise of the integrity of judicial proceedings due to attorney or party misconduct is sufficient to constitute fraud on the court.

To the contrary of the Special Master’s interpretation of the Hazel-Atlas Glass

decision, the focus is not on prejudice to plaintiff21 but on the integrity of proceedings:

In Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S.

238, 64 S. Ct. 997, 88 L. Ed. 1250, 1944 Dec. Comm'r Pat.

675 (1944), the Supreme Court explained that the inquiry

into whether a judgment should be set aside for fraud on the

court focuses not so much on whether the alleged fraud

prejudiced the opposing party but on whether the alleged

fraud harms the integrity of the judicial process. The

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

plaintiff merely for the time involved in the Rule 60 proceeding. In Re: Rafail Theokary, 468 B.R. at 750. 21 Nevertheless, where important, discoverable information is intentionally withheld from a party and from the court, prejudice to a litigant can be presumed. In Re: E. I. du Pont de Nemours and Co., 918 F. Supp. at 1550. The In Re: E.I. du Pont Court found: “a rebuttable presumption that the suppressed information and evidence would have led to other admissible evidence and that both the suppressed information and other evidence which may have been discovered would have been adverse to DuPont.” In Re: E. I. du Pont de Nemours and Co., 918 F. Supp. at 1553.


46

misconduct of McWade and Sims was a fraud on the Court

because it harmed the integrity of the judicial process.

Hartman, supra at 41. "’Fraud on the court occurs when the misconduct harms the

integrity of the judicial process, regardless of whether the opposing party is prejudiced.’”

Hartman, supra at 29 (citing Alexander v. Robertson, 882 F.2d at 424); Id. at 31 (“[t]he

Court of Appeals made it clear in Dixon V that entitlement to relief from a fraud on the

court does not require a showing of prejudice.”) Federal common law finds that merely

an attempt to pervert judicial proceedings constitutes fraud on the court:

One cannot argue that there was no prejudice because the scheme did not succeed. [….] Equally, if not more significant is the prejudice posed by the fraud both to the integrity of legal system and the public interest. Derzack, 173 F.R.D. at 416.

In Re: Rafail Theokary, 468 B.R. 729, 750-751 (Bk. E.D.PA. 2012).

B. An attorney’s violation of his code of conduct is a fraud upon the court. i. Lawyers must act with honor as officers of the court at all times.

Attorneys must act with the highest ethics and candor to the tribunal as officers of

the court: “lawyers are expected to act in good faith, follow the rules and do their duty as

officers of the court seeking the truth. In Re: E. I. du Pont de Nemours and Co., 918 F.

Supp. at 1542 (citing C.A. v. Cincinnati Milacron Co., 799 F.2d 1510, 1521-23 (11th Cir.

1986).22 Justice Department attorneys in particular are held to the highest standards:

[T]he Supreme Court […] recognized that citizens have an interest in "some minimum standard of decency, honor, and

22 The courts [….] must depend on their officers, the lawyers,

to keep faith with their primary duty to the court as its officers [….] Counsel should not be allowed to "sell out" to their clients. (citations omitted)



47

reliability in their dealings with their Government", see Heckler v. Comty. Health Servs., Inc., 467 U.S. 51, 61, 104 S. Ct. 2218, 81 L. Ed. 2d 42 (1984) [….]

Hartman, et al., v. Commissioner of Internal Revenue, T.C. Memo 2008-124; 2008 Tax

Ct. Memo Lexis 126, at 28 (U.S. Tax Ct. 2008); St. Regis Paper Co. v. United States,

368 U.S. 208, 229, 82 S. Ct. 289, 7 L. Ed. 2d 240 (1961) ("It is no less good morals and

good law that the Government should turn square corners in dealing with the people

than that the people should turn square corners in dealing with their Government").

ii. Any departure from that standard of high moral conduct for lawyers works a fraud upon the court under Rule 60(b)(3).

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

attorney canons of ethics and court officer expectations is a fraud upon the court:

An attorney's "loyalty to the Court, as an officer thereof, demands integrity and honest dealing with the Court. And when he departs from that standard in the conduct of a case he perpetrates a fraud upon the Court." Kupferman v. Consolidated Research & Manufacturing Corp., 459 F.2d 1072, 1078 (2d Cir.1972) [citing 7 Moore, Federal Practice, Par. 60.33 at 513]. Fraud on the court is a "species of fraud which does or attempts to, subvert the integrity of the court itself...." 7 Moore's Federal Practice P 60.33 at 515 (1971 ed.) See Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 702 (2d Cir.1972). An attorney may commit fraud on the court not only through misrepresentation, but also through omission. [….] "The very temple of justice [is] defiled." Universal Oil Products v. Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447 (1946).

In re: Enrique Antonio Ocon, 2007 Bankr. LEXIS 947, 4 (Bk. S.D.N.Y. Miami Div. 2007).

The court should punish misconduct where government attorneys control the

proof, such as DOJ’s productions regarding communications with and about Higman:

Brown's offense was committed within the sanctity of the court itself. The violation here is particularly insidious because [….]


48

[t]he information needed to prove such assertions false is peculiarly within the hands of the government.

United States v. Cortina, 630 F.2d 1207, 1216 (7th Cir. 1980). The Seventh Circuit in

Cortina urged federal courts to deter attorneys who withhold information relevant to a

judge’s ability to police a courtroom: “it is that truth-finding function itself which has been

corrupted, not because of suppression, but because of the lies told to the magistrate.”

Id. at 1217. The court is well within its discretion to consider the absence of the Justice

Department’s remorse for its intimidation of witnesses such as Trainor: “[d]efendants

then attempted to explain away their patently false and repeated statements from

multiple sources by stating they were simply "mistaken." Peter Kiewit Sons', Inc., supra

at 16; Universal Cooperative, Inc. v. Tribal Co-operative Marketing Development

Federation of India, Ltd., 45 F.3d 1194, 1196 (8th Cir. 1995). This Rule 60 proceeding

is critical to harnessing DOJ misconduct by penalizing the act of lying to a federal judge.

C. A mere attempt by the United States Department of Justice to engage in

attorney misconduct towards the Court constitutes a fraud on the court.

Civil Division’s encounters with ATF agents of great integrity such as Trainor and

Thomas Atteberry do not spare Civil Division from the repercussions for attempted

witness intimidation and fraud on the court23, or if discovery establishes it, from

encouraging Higman’s threat to Trainor.24 To establish fraud on the court, “it is

23 Trainor’s agreement to wait to report the threats to the court does not impact the court’s ability or need to investigate Civil Division’s attempted fraud. See In Re: E. I. du Pont de Nemours and Co., 918 F. Supp. at 1551.

24 [W]here an attorney encourages or participates in the

fabrication of facts before a court, the courts have generally found that this amounts to a fraud on the court. See, e.g., Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S. Ct. 997, 88 L. Ed. 1250 (1944) [….].


49

necessary [only] to show an unconscionable plan or scheme which is designed to

improperly influence the court in its decision.” Rozier v. Ford Motor Co., 573 F.2d 1332,

1338 (5th Cir. 1978) (quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960)).

(bracketed material added); Videojet Systems Intl., Inc., supra at 2 (“The district court

granted Videojet's motion for a default judgment, noting that Eagle had engaged in a

‘concerted extensive attempt to commit a fraud on the court.’")

The attempt at misconduct is what matters, not the outcome25, i.e., wrong-doers

lacking compelling gravitas to intimidate ethical witnesses should not escape sanctions.

Fraud on the court requires a party to "sentiently set in motion some unconscionable

scheme calculated to interfere with the judicial system's ability impartially to adjudicate a

matter by . . . unfairly hampering the presentation of the opposing party's claim or

defense." Zimmerman, supra, at 19 (citing Passlogix, Inc. v. 2FA Tech., LLC, 708 F.

Supp. 2d 378, 393 (S.D.N.Y. 2010); see Rezende v. Citgroup Global Markets, Inc., No.

09 CV 9392, 2011 U.S. Dist. LEXIS 45475, 2011 WL 1584603, at *4 (S.D.N.Y. Apr. 27,

2011); Charter Practices Intl. v. Robb, 2015 U.S. Dist. LEXIS 34111, at 2 (D.CT. 2015).

Civil Division’s attempt to taint proceedings, if proven, so as to deny to Judge

Allegra an opportunity to investigate the Higman threats constitutes a fraud on the court:

In analyzing the term "fraud upon the court," the Second Circuit, citing Moore's Federal Practice, stated that the "concept should 'embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud

Cleveland Demolition Company, Inc., supra, at 3 (emphasis added).

25 Fraud on the court includes unsuccessful attempts to prejudice proceedings. Cerruti 1881 S.A. v. Cerruti, Inc., 169 F.R.D. 573, 583-84 (S.D.N.Y. 1996) (imposing sanction of default judgment against the defendants based on defendants' [….] fabrication of evidence central to the case, despite the fact that defendants withdrew the documents after falsity had been detected).


50

perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.'" Kupferman v. Consolidated Research & Mfg. Corp., 459 F.2d 1072, 1078 (2d Cir. 1972) (quoting 7 Moore, Federal Practice ¶ 60.33 at 515 (1971 ed.));

Zimmerman, supra at 19 (emphasis added); Florida Evergreen Foliage, 135 F. Supp. 2d

at 1287 (fraud on the court defined as “that species of fraud which does or attempts to,

defile the court itself “) (citing ESM Group, Inc., 835 F.2d at 273 and Travelers

Indemnity Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985) (emphasis added).

The bad faith conduct that plaintiff alleges DOJ attorneys undertook, even if

unsuccessful, (1) during meetings with Trainor and possibly Higman, (2) by misleading

Judge Allegra, and (3) conspiring outside of court, supports a finding of fraud on the

court: “[the] inherent power of court ‘reaches both conduct before the court and beyond

the court's confines,’ and may properly be invoked to sanction willful bad-faith conduct

committed in an attempt to perpetrate fraud on the court”. Derzack, 173 F.R.D. at 412;

In Re: Rafail Theokary, 468 B.R. at 740 (“Debtor attempted to commit a fraud upon the

court by knowingly and in bad faith offering this evidence under false pretenses.”);

Emma C., et al., v. Eastin, et. al., 2001 U.S. Dist. Lexis 16119, at 3 (N.D.Ca. 2001).

CONCLUSION

For the foregoing reasons, plaintiff Jay Dobyns respectfully requests that the

Court allow the conduct of depositions, hearing and final briefing in this proceeding.

DATED this 27th day of August, 2015. /s/ James B. Reed

BAIRD WILLIAMS & GREER, LLP 6225 North 24th Street, Suite 125

Phoenix, Arizona 85016 Attorneys for Plaintiff Jay Anthony Dobyns


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CERTIFICATE OF SERVICE

The undersigned hereby certifies that, on August 27, 2015, a copy of the

foregoing “Plaintiff Jay A. Dobyns’ Objection to the Special Master’s Report and

Recommendation” was served on counsel for Defendant electronically to Robert

Kirschman, Civil Division, Commercial Litigation Branch, United States Department of

Justice, PO Box 480, Ben Franklin Station, Washington DC 20005.

/s/ James B. Reed
