U.S. v. Buck, No. 01-7015.

Decision Date08 March 2002
Docket NumberNo. 01-7015.
Citation281 F.3d 1336
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Daniel S. BUCK and Ripley Berryhill, Defendants-Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

Marcella Burgess Giles, McLean, Virginia (Ernest C. Baynard, III, Washington, D.C., with her on the briefs), for Defendants-Appellants.

Ellen J. Durkee, Attorney, Appellate Section, Environment & Natural Resources Division, Department of Justice, Washington, D.C. (Sheldon J. Sperling, United States Attorney; Linda A. Epperley, Assistant United States Attorney, Muskogee, OK; John C. Cruden, Assistant Attorney General; Jeffrey Dobbins, Attorney, Appellate Section, Environment & Natural Resources Division, Department of Justice, Washington, D.C., with her on the brief), for Plaintiff-Appellee.

Before TACHA, Chief Judge, KELLY and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

More than four years after entry of a quiet title judgment in favor of the United States, Defendant Ripley Berryhill (Berryhill), joined by 26 others (the Non-party Movants), sought relief under Federal Rule of Civil Procedure 60(b). They contended that the judgment should be set aside (1) under Rule 60(b)(6) because it was obtained by fraud upon the court and (2) under Rule 60(b)(4) because it is void. The district court denied the motion. Berryhill and fellow defendant Daniel Buck appeal. We have jurisdiction under 28 U.S.C. § 1291.

We affirm, holding: (1) Appellants' claim of fraud upon the court was brought improperly under Rule 60(b)(6) but can be treated as a claim in an independent action or as a motion addressed to the inherent power of the court to set aside a judgment procured by fraud upon the court; (2) Appellants failed to establish fraud upon the court; (3) the judgment is not void for lack of subject matter jurisdiction, Appellants' claim to the contrary being founded merely on contentions that the district court had committed legal error in deciding the merits; and (4) failure to give notice of the quiet title action to the Non-party Movants did not deprive them of due process or otherwise render the quiet title judgment void. The United States also challenges the standing of the Non-party Movants under Rule 60(b), but our decision in favor of the United States on the merits makes it unnecessary for us to address that issue. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 97, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (statutory standing, unlike Article III standing, need not be decided before addressing the merits); McNamara v. City of Chicago, 138 F.3d 1219, 1222 (7th Cir.1998) (court need not resolve standing of all plaintiffs when some plaintiffs clearly have standing to raise the issue).

I. Background

The property at issue (the Property) consists of two lots totaling 161.81 acres in Hughes County, Oklahoma. Berryhill and the Non-party Movants claim descent from Nettie Tiger, a fullblood Creek who acquired the Property in 1903 from the Muscogee (Creek) Nation. After her death a court in 1945 determined that she had six heirs. In 1948 one of these heirs conveyed her undivided 1/6 interest in the Property to Ralph Oliphant, a non-Indian. Oliphant promptly filed suit to partition the Property, thereby forcing its sale. He purchased the Property at a sheriff's sale on January 11, 1949. But on January 20 the Secretary of the Interior exercised his preference right under the Oklahoma Indian Welfare Act of June 26, 1936, to acquire the Property in trust for the Thlopthlocco Tribal Town. Bidding on the Property was therefore reopened. The United States was the high bidder, its title being confirmed by court order on March 10, 1949. Dispute over the title then arose after Ralph Oliphant conveyed whatever interest he had in the Property to Buck and Berryhill in 1992.

Litigation concerning the Property commenced in the United States District Court for the Eastern District of Oklahoma in 1995 when the United States brought an action on its own behalf and in its capacity as trustee of lands of the Thlopthlocco Tribal Town. The complaint sought, among other relief, to quiet title to the Property and to enjoin Buck and Berryhill from trespassing on the Property or asserting any claim to it. Named as defendants were Buck and Berryhill; Nannette Oliphant Moore; John, Francis, Ralph, and Emma Jo Oliphant; the known and unknown successors, heirs, and assigns of the individual defendants; Sentinel Petroleum Inc.; and the State of Oklahoma ex rel. Oklahoma Tax Commission. The court entered judgment on February 8, 1996, quieting title to the Property in the United States and granting the requested injunctive relief.

On October 22, 1999, the United States filed a motion for an order requiring Buck and Berryhill to show cause why they should not be held in contempt for violating the injunction in the quiet title judgment. On March 20, 2000, a day before a scheduled hearing on the motion, Berryhill and the Non-party Movants filed a motion for relief from the judgment "[p]ursuant to Rule 60(b)(4) and (6)." The district court ruled that the motion was untimely, the legal arguments challenging the propriety of the quiet title judgment were unfounded, there was no fraud upon the court, and the Non-party Movants lacked standing to seek relief under Rule 60.

II. The Merits

There was no appeal of the quiet title judgment. The motion for relief from the judgment comes long after the time for appeal had expired. If there is ever to be closure to litigation, such motions should be granted only for compelling reasons. The Federal Rules of Civil Procedure so provide. Rule 60(a) governs the correction of clerical mistakes. Substantive grounds for relief are set forth in Rule 60(b).1 Appellants invoke clause (b)(4) of the Rule, which permits relief on the ground that "the judgment is void," and clause (b)(6), which permits relief for "any other reason justifying relief from the operation of the judgment." We begin with their argument that relief should have been granted under clause (b)(6).

A. Fraud upon the Court.
1. Procedural Issues

Appellants' claim for relief under Rule 60(b)(6) is based on the contention that the attorneys for the United States committed fraud upon the court in obtaining the quiet title judgment. Before considering the merits of the contention, we address a procedural matter. We hold that a claim of fraud, including fraud upon the court, cannot be brought under clause (b)(6). As we shall explain, however, the error in labeling the pleading is not fatal because Rule 60(b) permits other means of pursuing the relief they seek.

Appellants' reliance on clause (b)(6) immediately raises questions because fraud is specifically mentioned in clause (b)(3) as a ground for relief from a judgment. Why would Appellants choose clause (b)(6) rather than (b)(3)? The answer is timing. Rule 60(b) provides that a motion under the Rule "shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken." Appellants were well outside the one-year time limit for a motion under clause (b)(3), the motion having been filed more than four years after the quiet title judgment.

To avoid the time bar, Appellants instead rely on clause (b)(6), which permits relief for "any other reason justifying relief from the operation of the judgment." Rule 60(b)(6) (emphasis added). Their reliance is misplaced. The clear import of the language of clause (b)(6) is that the clause is restricted to reasons other than those enumerated in the previous five clauses. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 n. 11, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988); Plotner v. AT & T Corp., 224 F.3d 1161, 1174 (10th Cir.2000); 12 James Wm. Moore et al., Moore's Federal Practice § 60.48, at 60-167 (3d ed. 1997) (Moore's); 11 Charles Alan Wright, et al., Federal Practice and Procedure § 2864, at 362 (2d ed. 1995) (Wright & Miller). Because fraud is one of the reasons for relief appearing in clause (3), it is not available as "any other reason" under clause (6). Appellants cannot so easily escape the time restrictions on Rule 60(b)(3) motions.

Nevertheless, Rule 60(b) authorizes two other avenues for relief from fraud upon the court. The rule states that it "does not limit the power of a court [1] to entertain an independent action to relieve a party from a judgment, order, or proceeding... or [2] to set aside a judgment for fraud upon the court." Rule 60(b); see 12 Moore's § 60.81[1][b] (distinguishing between an independent action and the inherent power to set aside a judgment for fraud upon the court); 11 Wright & Miller § 2851, at 229 (same).

The first additional avenue mentioned is an independent action. It is a narrow avenue. The Supreme Court has recently held that "under the Rule, an independent action should be available only to prevent a grave miscarriage of justice." United States v. Beggerly, 524 U.S. 38, 47, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998). But the roadway is wide enough to allow at least some claims of fraud. See 11 Wright & Miller § 2868, at 399-400; id. § 2870, at 415; 12 Moore's § 60.81[1][a]. There is no set time limit for filing an independent action, although relief may be barred by laches. See 11 Wright & Miller § 2868, at 401-02; 12 Moore's § 60.21[2], at 60-50.

The second procedure for obtaining relief is to invoke the inherent power of a court to set aside its judgment if procured by fraud upon the court. Relief is not dependent on the filing of a motion by a party to the original judgment; the court may assert this power sua sponte. See 11 Wright & Miller § 2865, at 380; id. § 2870, at 411; 12 Moore's § 60.21[4][e], at 60-60 (party seeking relief need not have been a formal party to original proceeding); id. § 60.21[4][f]; id. § 60.62, at 60-195. There is no time limit for...

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