Bickel v. The Delaware Air National Guard

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

PETER W. BICKEL, :

:

: Case No. 2:18-cv-00119

Plaintiff, :

: CHIEF JUDGE ALGENON L. MARBLEY

v. :

: MAGISTRATE JUDGE VASCURA

THE DELAWARE AIR NATIONAL :

GUARD, et al., :

:

Defendants. :

OPINION & ORDER

This matter is before this Court on Plaintiff’s Motions to Vacate Judgment (ECF No. 30)

and to Strike (ECF No. 32). For the following reasons, Plaintiff’s Motions are DENIED, and this

case shall remain CLOSED.

I. BACKGROUND 1

Plaintiff, a licensed optometrist and Colonel in the Delaware Air National Guard (“DE

ANG”), initiated this action on February 14, 2018, against DE ANG, Major General Carol A

Timmons in her official capacity as the Adjutant General of the DE ANG, and the United States

Department of Defense (DoD), James N. Mattis, in his official capacity as the United States

Secretary of Defense. (See ECF Nos. 1, 2). Plaintiff alleges that Defendants deprived him of his

right to pursue his profession and livelihood without due process based on DE ANG’s

determination that his federal recognition should be withdrawn, and that he should be discharged

for misconduct. (ECF No. 30 at 2). Plaintiff also sought a Preliminary Injunction. (ECF No. 7).

1 Because the parties are familiar with the facts of this case, this Court does not restate them except as necessary to

explain its decision.

On March 28, 2018, Defendants filed a Motion to Dismiss Plaintiff’s Motion for

Preliminary Injunction and First Amended Complaint for Injunctive Relief (“Motion to Dismiss”).

(ECF No. 21). This Court granted Defendants’ Motion, holding that Plaintiff had not yet exhausted

his administrative remedies, given the intramilitary processes which had yet to conclude. (Id. at

12–13). Plaintiff’s claims, however, were dismissed without prejudice, to afford him the

opportunity to exhaust these remedies. (Id. at 14). The Clerk entered judgment on May 11, 2018.

(ECF No. 29).

More than four years later, Plaintiff filed the instant Motion, requesting this Court vacate

its Opinion and Order granting Defendants’ Motion to Dismiss. (ECF No. 30). Plaintiff argues,

pursuant to Fed. R. Civ. P. 60(d)(3), that Defendants defrauded this Court by representing a

Withdrawal of Federal Recognition Board (WOFR) would be convened to adjudicate Plaintiff’s

claims, when they knew no board would ever be convened. (See generally id.). Given that this

Court’s decision was, at least in part, based on this allegedly fraudulent representation, Plaintiff

argues setting aside that judgment is necessary. (Id. at 5–6).

Plaintiff filed his Motion on June 25, 2021. Defendants, however, did not file their

Memorandum in Opposition until July 20, 2021; four (4) days after the Local Rules’ twenty-one

(21) day deadline lapsed (ECF No. 31). See S.D. Ohio Civ. R. 7.2(a)(2). Given this delay, along

with its Reply Memorandum, Plaintiff moved to strike Defendants’ Memorandum in Opposition

as untimely.2 (ECF No. 32). As Plaintiff’s Motion to Vacate has been fully briefed, albeit untimely,

this matter is now ripe for resolution.3

2 Plaintiff further asserts, in a separately filed Notice, that Defendants have failed to file any opposition papers to his

Motion to Strike, and the time for doing so has passed. (ECF No. 33).

3 As detailed below, this Court excuses Defendants’ untimely filing and will consider it in evaluating Plaintiff’s

Motion. (See infra at Part III(A)).

II. STANDARD OF REVIEW

Typically, motions to set aside judgments are subject to a one-year bar. Fed. R. Civ. P.

60(b)(3). If, however, a plaintiff alleges that fraud was committed against the court, there is no

such bar. Fed. R. Civ. P. 60(c)(1). To establish fraud upon the Court, a movant must prove the

alleged misconduct was: (1) committed on the part of an officer of the court; (2) directed to the

judicial machinery itself; (3) intentionally false, willfully blind to the truth, or in reckless disregard

for the truth; (4) a positive averment or a concealment when one is under a duty to disclose; and

(5) deceptive of the court. Workman v. Bell, 227 F.3d 331, 336 (6th Cir. 2000). The Sixth Circuit

has narrowly interpreted fraud on the court as contemplated by Rule 60(d)(3):

“Fraud upon the court should . . . embrace only that species of fraud which does or

attempts to, subvert the integrity of the court itself, or is a fraud perpetrated by

officers of the court so that the judicial machinery cannot perform in the usual

manner its impartial task of adjudging cases that are presented for adjudication, and

relief should be denied in the absence of such conduct.”

Demjanjuk v. Petrovsky, 10 F.3d 338, 352 (6th Cir.1993) (internal quotation omitted). Relief under

Rule 60(d)(3), therefore, is usually “reserved for circumstances in which, for example, a judge or

a juror has been bribed, a bogus document is inserted in the record, or improper influence has been

exerted upon the court or an attorney so that the integrity of the court and its ability to function is

directly impinged.” Morawski v. United States Dep’t of Agric., No. 09–14568, slip. op., 2010 WL

2663201, at *7 (E.D. Mich. July 2, 2002).

III. LAW & ANALYSIS

Plaintiff makes two requests of this Court. First, he asks that it set aside its previous

judgment, given that Defendants and their counsel committed “fraud on the court.” (ECF No. 30).

Second, Plaintiff requests this Court strike Defendants’ Memorandum in Opposition because it

was untimely filed. (ECF No. 32). This Court begins with the latter.

A. Untimely Response & Motion to Strike

Plaintiff asserts Defendants failed to comply with Local Rule 7.2(a)(2), by filing their

Memorandum in Opposition twenty-five (25) days after service of his Motion to Vacate, rather

than twenty-one (21) days after. (ECF No. 32 at 2). Given this failure, says Plaintiff, striking that

filing is appropriate. (Id.). In support of his position, Plaintiff relies on Blue Grp. Res., Inc. v.

Caiman Energy, LLC, wherein the Court struck a memorandum in opposition that was filed 4 days

late, asserting that the Local Rules do not contain a “no harm no foul” exception. (Id. (citing No.

2:11-CV-648, 2013 WL 12178525, * 3 (S.D. Ohio July 22, 2013))). Defendants do not tender any

excuse for their delay.

The meaning of the phrase “excusable neglect” was explored by the United States Supreme

Court in Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380 (1993).

There, the Court recognized that “excusable neglect” is a somewhat elastic concept. Under that

concept, a court is “permitted, where appropriate, to accept late filings caused by inadvertence,

mistakes, or carelessness” even when an adequate excuse is not tendered. Id. at 388. (emphasis

added). However, the Court must consider four factors in determining whether to grant an

extension under the “excusable neglect” concept, including any prejudice which might inure to the

opposing party or to the Court, the length of the delay involved, the reason advanced for the delay,

and whether the dilatory party appears to have acted in good faith. See also Blandford v. Broome

County Government, 193 F.R.D. 65 (N.D.N.Y.2000).

Given they do not offer any excuse for their delay, this Court will assume Defendants

simply missed the response deadline; effectively an “omissions caused by carelessness.” Pioneer,

507 U.S. at 388. On the other hand, it does not appear that Defendants’ delay has prejudiced either

Plaintiff or the Court in its ability to resolve this litigation in a timely fashion. Moreover, the delay

was only four (4) days, and there is no evidence Defendants did not act in good faith. Under these

circumstances and given the flexible nature of the “excusable neglect” concept articulated in

Pioneer, the Court concludes it is appropriate to consider Defendants’ untimely filing in resolving

Plaintiff’s Motion. See Tolliver v. Liberty Mut. Fire Ins. Co., No. 2:06-CV-00904, 2008 WL

545018, * 1 (S.D. Ohio Feb. 25, 2008) (granting defendant leave to file its answer instanter, despite

a two-month delay, citing “excusable neglect”). This is particularly true in light of the “strong

preference for trials on the merits in federal courts” consistently articulated in decisions from the

United States Court of Appeals for the Sixth Circuit. See, e.g., Shepard Claims Service v. William

Darrah & Associates, 796 F.2d 190, 193 (1986).

Accordingly, Plaintiff’s Motion to Strike (ECF No. 32) is DENIED, and this Court will

consider Defendants’ untimely Memorandum in Opposition (ECF No. 31).

B. Motion to Vacate

Plaintiff argues Defendants, and their counsel, committed fraud on this Court when they

represented that a WOFR Board needed to be convened before Plaintiff had exhausted his

administrative remedies. (See generally ECF No. 30). Specifically, he contends that Defendants

and their counsel knew, or should have known, that no such board would ever be formed, and,

moreover, no board ever was formed. (Id. at 5). Given that this Court based its dismissal, in part,

on his failure to exhaust this administrative requirement, Plaintiff argues vacating that Order is

necessary, pursuant to Fed. R. Civ. P. 60(d)(3). (Id. at 6–7).

In support of this contention, Plaintiff relies on the Declaration of Daniel T. Kozlowski, a

retired Colonel from the Indiana National Guard who had served as a Judge Advocate for many

years. (Id. at 3). Col Kozlowski testified that, based on his own experience, it was unlikely a WOFR

would be convened in this matter as “the Findings in the local investigation [did] not constitute a

serious enough matter to justify [it].” (Id. at 4). Moreover, Plaintiff represents Col Kozlowski knew

a WOFR-convening request had not yet been submitted, nor had the predicate WOFR legal opinion

been obtained, based on his knowledge of the National Guard military justice process and personal

contacts within the National Guard Board Chief Legal Counsel. (Id.). Based on this representation,

which was offered during briefing on Defendants’ Motion to Dismiss, Plaintiff maintains

Defendants and their counsel misled this Court to believe Plaintiff would have an opportunity to

contest the allegations against him and prove his innocence at a WOFR. (Id. at 5). This is further

supported, says Plaintiff, given that in the four years since this Court’s Opinion, no WOFR has

been convened. (Id.). Accordingly, Plaintiff argues there is clear and convincing evidence to set

aside this Court’s judgment for fraud on the court, pursuant to Rule 60(d)(3). (Id. (citing Daniels

v. Jackson, No. 20-2090, 2021 WL 1923060, * 2 (6th Cir. Mar. 9, 2021))).

Defendants make three arguments in response. First, Defendants assert that the appropriate

means of re-opening this case would have been for Plaintiff to file a new complaint pursuant to

this Court’s prior dismissal without prejudice. (ECF No. 31 at 3–5). Plaintiff, however, failed

timely to refile and Defendants argue the applicable two-year statute of limitations has run. (Id. at

4). The instant Motion, Defendants assert, is merely Plaintiff attempting to ameliorate that failure.

(Id.). Second, and most substantively, Defendants maintain that Plaintiff fails to provide any

evidence showing conduct that amounts to a fraud on the court, and which would warrant relief

under Rule 60(d)(3). (Id. at 5–7). Specifically, Defendants assert that because the alleged fraud

was known to Plaintiff before judgment, he cannot be granted relief now. (Id. at 5 (citing Computer

Leasco, Inc. v. NTP, Inc., 194 F. App’x 328, 335 (6th Cir. 2006))). Moreover, Defendants claim

Plaintiff’s allegation of fraud is based on speculation as to Defendants’ intent and fails to allege

egregious conduct that would rise to the level of fraud on the court. (Id. at 6). They claim the

narrative of actual events, that the WOFR process was initiated in late November/early December

of 2018, conflicts with Plaintiff’s claim that no attempt was ever made to convene a WOFR and

corroborates their good faith belief that a WOFR would be convened. (Id. at 7). Third, Defendants

maintain that the late decision to not rush to convene a WOFR inured to the benefit of Plaintiff’s

professional/military career, as that prevented him from being forced to retire earlier than initially

mandated. (Id. at 8).

To establish a fraud on the Court, Plaintiff must “present clear and convincing evidence of:

(1) conduct on the part of an officer of the court; (2) directed to the judicial machinery itself; (3)

that is intentionally false, willfully blind to the truth, or in reckless disregard of the truth; (4) is a

positive averment or a concealment when one is under a duty to disclose; and (5) deceives the

court.” Gen. Med., P.C. v. Horizon/CMS Health Care Corp., 475 F. App’x 65, 71 (6th Cir. 2012).

Even if this Court assumes for the purposes of this analysis that the first, second and fourth

elements of fraud on the court are met, Plaintiff’s claim still falls short of satisfying the third and

fifth elements of fraud on the court.

1. Intentionally False, Willfully Blind to the Truth, or in Reckless Disregard of the Truth

Plaintiff alleges Defendants and their counsel knew, or should have known, that a WOFR

would never be convened, and their representation otherwise constitutes at least a “reckless

disregard for the truth.” (ECF No. 30 at 2). Reckless disregard in this context refers to situations

where “the actor has . . . knowledge, or reason to know, of the facts, but does not realize or

appreciate the high degree of risk involved, although a reasonable man in his position would do

so.” Demjanjuk, 10 F.3d at 349. Viewed through the lens of this objective standard, the record

lacks support for the conclusion that Defendants, or their counsel, acted in reckless disregard for

the truth.

First, Defendants’ counsel made no attempt to conceal Col. Kozlowski’s Declaration from

the Court. It was this Court, rather, that dismissed Col. Kozlowski’s representations, finding that

“[w]hile one officer may have believed rebutting the [Letters of Reprimand] would have been

futile, there is nothing to suggest that the board of officers hearing would be futile.” (ECF No. 28

at 13). Moreover, there is no evidence of record that Defendants themselves knew, or had reason

to know, that a WOFR would not be convened. In fact, Lt. Col. Robert R. Howard’s declaration,

establishes that the WOFR process was initiated in late November/early December of 2018. (ECF

No. 31 at 7 (citing ECF No. 31-1)). Plaintiff claims he received notice of this process a year earlier,

in a Notice Memorandum supplied during discovery. (ECF No. 32 at 7). This Notice, says Plaintiff,

illustrates there was more than sufficient time for Defendants to form a WOFR, and that any

averments otherwise are false. (ECF No. 32 at 7). Ultimately, however, when Plaintiff learned that

a WOFR was in the process of being convened, is immaterial. (emphasis added). Simply because

a process may take a substantial amount of time to begin, that does not mean a representation that

the process will happen is false. Again, other than conclusory assertions regarding his unfounded

understanding of administrative disciplinary processes in the United States military, Plaintiff offers

no “clear and convincing evidence” Defendants, or their counsel, made representations that were

“intentionally false, willfully blind to the truth, or is in reckless disregard of the truth.” Nothing

prevented Plaintiff from “presenting his case fully and fairly.” Demjanjuk, 10 F.3d at 354.

2. Deceives the Court

Plaintiff has also failed to satisfy, by clear and convincing evidence, the fifth element of

fraud on the court, which requires the judge to have actually been deceived. To show successfully

the Court was deceived, Plaintiff must show the alleged fraud “subverted the judicial process.”

Lacks Indus., Inc. v. McKechnie Vehicle Components USA, Inc., 407 F. Supp. 2d 834, 850 (E.D.

Mich. 2005). Such subversion must “prevent[] the judicial machinery from preforming in the usual

manner to impartially adjudge the case presented.” See Followell v. Mills, 317 Fed. Appx. 501,

506 (6th Cir. 2009); see also Rodriguez v. Honigman Miller Schwartz & Cohn LLP, 465 F. App’x

504 (6th Cir. 2012) (dismissing a rule 60(d)(3) motion, where movant “failed to allege specific

facts to plausibly suggest that the actions taken by defendants actually subverted the administration

of justice or defiled the integrity of the courts”).

What proves determinative here is that this Court already considered all the evidence

proffered by Plaintiff in the instant Motion when ruling on Defendants’ Motion to Dismiss. The

memorandum from Col Culcasi (see ECF No. 21-1), Col Kozlowski’s Declaration (ECF No. 25),

the relevant Air Force Instruction (see ECF No. 28 at 12) as well as Plaintiff’s arguments about

the futility of attempting to exhaust (id. at 13; ECF No. 23 at 19–20), were all considered and

rejected by this Court. Plaintiff cannot now come before this Court, four years after its judgment,

claiming fraud on the Court, with the exact same evidence this Court previously considered when

dismissing his Complaint. Moreover, this Court afforded Plaintiff an avenue to relitigate this case

by dismissing his Complaint without prejudice. (See ECF No. 28 at 14). Plaintiff failed timely to

pursue that avenue and is now attempting to relitigate this case by expanding the narrow reach of

the fraud-on-the-court doctrine. See Moore’s Federal Practice § 60.21[4][c]. To be clear, relief

under Rule 60(d)(3) is reserved for “the most egregious conduct involving a corruption of the

judicial process itself[,]” it is not a backdoor for lethargic litigants. 11 Charles Alan Wright et al.,

Federal Practice & Procedure § 2870 (West 2011) (collecting cases).

Even were this Court to find Defendants, or their counsel, had conducted themselves in a

deceitful manner––and it has not––relief under Rule 60(d)(3) would still be inappropriate.

Precedent dictates that “‘even fairly despicable conduct will not qualify as fraud on the court.’”

Gen. Med., 475 F. App’x at 71 (quoting Moore's Federal Practice § 60.21[4][c] (collecting cases

for the proposition that perjury and non-disclosure by a single litigant did not rise to the level of

fraud on the court)). If Defendants, and their counsel, were uncertain as to whether a WOFR would

be convened, but nonetheless represented to this Court that convening said board was an

administrative remedy Plaintiff was required to exhaust, that is surely not the sort of “flagrant

abuse” which would necessitate the “extraordinary relief’ afforded under Rule 60(d)(3). Gen.

Med., 475 F. App’x at 71.

IV. CONCLUSION

For the following reasons, Plaintiff's Motions (ECF Nos. 30, 32) are DENIED, and this

case shall remain CLOSED.

IT IS SO ORDERED.

CHIEF UNITED STATES DISTRICT JUDGE

DATED: March 28, 2022

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