Herring v. U.S.

• Decision Date: 22 September 2005
• Docket Number: No. 04-4270.,04-4270.
• Citation: 424 F.3d 384
• Parties: Patricia J. HERRING, Individually; Judith Palya Loether, Individually and as a Living Heir of Elizabeth Palya (Deceased); William Palya, Individually and as a Living Heir of Elizabeth Palya (Deceased); Robert Palya, Individually and as a Living Heir of Elizabeth Palya (Deceased); Susan Brauner, Individually and as a Living Heir of Phyllis Brauner (Deceased); Catherine Brauner, Individually and as a Living Heir of Phyllis Brauner (Deceased), Appellants v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

424 F.3d 384

Patricia J. HERRING, Individually; Judith Palya Loether, Individually and as a Living Heir of Elizabeth Palya (Deceased); William Palya, Individually and as a Living Heir of Elizabeth Palya (Deceased); Robert Palya, Individually and as a Living Heir of Elizabeth Palya (Deceased); Susan Brauner, Individually and as a Living Heir of Phyllis Brauner (Deceased); Catherine Brauner, Individually and as a Living Heir of Phyllis Brauner (Deceased), Appellants v. UNITED STATES of America.

No. 04-4270.

United States Court of Appeals, Third Circuit.

Argued July 15, 2005.

Filed September 22, 2005.

COPYRIGHT MATERIAL OMITTED

Wilson M. Brown, III (Argued), Lori J. Rapuano, Angie Halim, Drinker Biddle & Reath, LLP, Philadelphia, PA, for Appellants.

Peter D. Keisler, Assistant Attorney General, Patrick L. Meehan, United States Attorney, Barbara L. Herwig, August E. Flentje (Argued), Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., for Appellee.

Before ALITO, VAN ANTWERPEN and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

In this case we decide whether the Government's assertion of military secrets privilege for an accident report discussing the October 6, 1948 crash of a B-29 bomber which killed three civilian engineers along with six military personnel, at Waycross, Georgia, was fraud upon the court.

I.

Actions for fraud upon the court are so rare that this Court has not previously had the occasion to articulate a legal definition of the concept. The concept of fraud upon the court challenges the very principle upon which our judicial system is based: the finality of a judgment. The presumption against the reopening of a case that has gone through the appellate process all the way to the United States Supreme Court and reached final judgment must be not just a high hurdle to climb but a steep cliff-face to scale.

In order to meet the necessarily demanding standard for proof of fraud upon the court we conclude that there must be: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court.¹ We further conclude that a determination of fraud on the court may be justified only by "the most egregious misconduct directed to the court itself," and that it "must be supported by clear, unequivocal and convincing evidence." In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 538 F.2d 180, 195 (8th Cir.1976) (citations omitted). The claim of privilege by the United States Air Force in this case can reasonably be interpreted to include within its scope information about the workings of the B-29, and therefore does not meet the demanding standard for fraud upon the court.

II.

Early in 2000, Judith Palya Loether learned through internet research that the government had declassified Air Force documents regarding military aircraft accidents. She ordered documents related to the crash of a B-29 bomber at Waycross, Georgia, on October 6, 1948. Her father, Albert Palya, along with two other civilian engineers, had been killed in that crash. Her mother and the other two widows had sued the Government under the Tort Claims Act, but had not been able to gain access to the, now declassified, Air Force documents because of the Government's claim that the documents were protected by privilege. The case was heard by the Supreme Court in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), which explained the legal framework we must use in analyzing claims in which the Government asserts a privilege against revealing military secrets. Id. at 7-12, 73 S.Ct. 528. The Supreme Court reversed the decision of this Court and remanded the case to District Court for determination of whether the facts of that particular case, applied to the legal standard articulated, merited a determination that the privilege sought by the Government should be granted. Id. at 12, 73 S.Ct. 528. Before the District Court was able to consider the case on remand, the parties settled for 75% of the District Court's original verdict and the case was then dismissed with prejudice.

The Supreme Court explained the facts and procedural history leading up to its determination of the case as follows:

These suits under the Tort Claims Act arise from the death of three civilians in the crash of a B-29 aircraft at Waycross, Georgia, on October 6, 1948. Because an important question of the Government's privilege to resist discovery is involved, we granted certiorari.

The aircraft had taken flight for the purpose of testing secret electronic equipment, with four civilian observers aboard. While aloft, fire broke out in one of the bomber's engines. Six of the nine crew members, and three of the four civilian observers were killed in the crash.

The widows of the three deceased civilian observers brought consolidated suits against the United States. In the pretrial stages the plaintiffs moved, under Rule 34 of the Federal Rules of Civil Procedure, for production of the Air Force's official accident investigation report and the statements of the three surviving crew members, taken in connection with the official investigation. The Government moved to quash the motion, claiming that these matters were privileged against disclosure pursuant to Air Force regulations promulgated under R.S. § 161. The District Judge sustained plaintiffs' motion, holding that good cause for production had been shown. The claim of privilege under R.S. § 161 was rejected on the premise that the Tort Claims Act, in making the Government liable "in the same manner" as a private individual had waived any privilege based upon executive control over governmental documents.

Shortly after this decision, the District Court received a letter from the Secretary of the Air Force, stating that "it has been determined that it would not be in the public interest to furnish this report...." The court allowed a rehearing on its earlier order, and at the rehearing the Secretary of the Air Force filed a formal "Claim of Privilege." This document repeated the prior claim based generally on R.S. § 161, and then stated that the Government further objected to production of the documents "for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force." An affidavit of the Judge Advocate General, United States Air Force, was also filed with the court, which asserted that the demanded material could not be furnished "without seriously hampering national security, flying safety and the development of highly technical and secret military equipment." The same affidavit offered to produce the three surviving crew members, without cost, for examination by the plaintiffs. The witnesses would be allowed to refresh their memories from any statement made by them to the Air Force, and authorized to testify as to all matters except those of a "classified nature."

The District Court ordered the Government to produce the documents in order that the court might determine whether they contained privileged matter. The Government declined, so the court entered an order, under Rule 37(b)(2)(i), that the facts on the issue of negligence would be taken as established in plaintiffs' favor. After a hearing to determine damages, final judgment was entered for the plaintiffs. The Court of Appeals affirmed, both as to the showing of good cause for production of the documents, and as to the ultimate disposition of the case as a consequence of the Government's refusal to produce the documents.

Id. at 2-5, 73 S.Ct. 528 (citations and internal quotations omitted).

In the present action, Palya Loether is joined by Patricia Herring, William Palya, Robert Palya, Susan Brauner and Catherine Brauner. Patricia Herring is one of the widows who was a party in the original action. The others are heirs of the two other, now deceased, widows in the original action. The substance of their complaint is that the purportedly top secret documents for which the Government claimed a military secrets privilege did not actually reveal anything of a sensitive nature. They claim, therefore, that Government officers fraudulently misrepresented the nature of the report in a way that caused the widows to settle their case for less than its full value.

Appellants first pursued this current claim in the Supreme Court by a motion seeking leave to file a petition for a writ of error coram nobis. The Court denied this motion on June 23, 2003. In re Herring, 539 U.S. 940, 123 S.Ct. 2633, 156 L.Ed.2d 625 (2003). Then, on October 1, 2003, Appellants filed this action in the District Court for the Eastern District of Pennsylvania, preserved by the savings clause of Rule 60(b) of the Federal Rules of Civil Procedure, to set aside the 50-year-old settlement agreement on the grounds that the settlement was procured by fraud upon the court. The Appellants sought the difference between the settlement amount and judgment originally entered by the District Court (which was later set aside by the Supreme Court). The Government then filed a motion to dismiss for failure to state a claim under Rule 12(b)(6). The District Court granted the Government's 12(b)(6) motion. It determined that there was no fraud because the documents, read in their historical context, could have revealed secret information about the equipment being tested on the plane and, on a broader reading, the claim of privilege referred to both the mission and the workings of the B-29. We affirm.

III.

The District Court had jurisdiction supplemental to its exercise of jurisdiction over the original claim in Reynolds v. United States, No. 10142 (E.D.Pa.) (filed September 27, 1949), and Brauner v. United States, No. 9793 (E.D.Pa.) (filed June 21, 1949). See 28 U.S.C. § 1367 (2000). We have jurisdiction pursuant to 28 U.S.C. § 1291.

IV.

The Government urges us to...