Opposition Brief — Kaimowitz v. City of Orlando

a Supreme Court, U.S.

“a FILED

od

) APR - § 2004

OFFICE OF THE CLERK

No. 03-1267

IN THE

Supreme Court of the United States

GABE KAIMOWITZ,

Petitioner,

VS.

ORLANDO, FL., RICK BERNHARDT,

and ORLANDO NEIGHBORHOOD IMPROVEMENT

CORPORATION,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

RESPONDENTS' BRIEF IN OPPOSITION

Bobby G. Palmer, Jr.

Hilyard, Bogan & Palmer, P.A.

P. O. Box 4973

Orlando, FL 32802-4973

(407) 425-4251

Attorneys for Respondents,

Orlando, Florida

and Rick Bernhardt

Il.

Il.

QUESTIONS PRESENTED FOR REVIEW

WHETHER RULE 60(b), FEDERAL RULES OF

CIVIL PROCEDURE CAN PROVIDE THE

PETITIONER WITH RELIEF FROM A VALID

JUDGMENT FOR ATTORNEY'S FEES ENTERED

MORE THAN THREE YEARS AGO, ASSUMING

THE PETITIONER'S PETITION FOR WRIT OF

CERTIORARI WAS TIMELY.

WHETHER PETITIONER'S DUE PROCESS

RIGHTS WERE VIOLATED BY A_ VALID

JUDGMENT ENTERED AGAINST HIM FOR

ATTORNEY'S FEES MORE THAN THREE

YEARS AGO, ASSUMING THE PETITIONER'S

PETITION FOR WRIT OF CERTIORARI WAS

TIMELY.

WHETHER THIS IS AN APPROPRIATE CASE

FOR THE IMPOSITION OF MONETARY

SANCTIONS AGAINST THE PETITIONER

UNDER RULE 42.2.

PARTIES

The caption of this brief reflects all parties to the

proceedings in the Court which rendered the judgment

sought to be reviewed; however, the undersigned counsel

appears only for the Respondents, Orlando, Florida and Rick

Bernhardt.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...............

eee ou sh yan Sobeesoncssninsssevesseevesooesecooss ii

TABLE OF CONTENTS.................ccccceececccccceeeeee. iii

TABLE OF CITED AUTHORITIES a bla eee V

CITATIONS OF UNOFFICIAL REPORTS

OF ORDERS ENTERED......0... 00. 000.ccccccccceceeeeeecceeee. I

STATEMENT OF THE BASIS

PUM SUREBDACTION.............0200...ccceccccoocesccocesess. 1

STATUTES AND RULES INVOLVED...................... 3

STATEMENT OF THE CASE.......00......00ccccccecceeeeeee. 5

eas oy. ss pnd coc cds cavescrervesoesscosccs 9

iii

Il.

III.

RULE 60(b), FEDERAL RULES OF CIVIL

PROCEDURE DOES NOT PROVIDE THE

PETITIONER WITH RELIEF FROM A VALID

JUDGMENT FOR ATTORNEY'S FEES ENTERED

MORE THAN THREE YEARS AGO, ASSUMING

ARGUENDO THE PETITIONER'S PETITION FOR

WRIT OF CERTIORARI WAS TIMELY.............9

THE PETITIONER'S DUE PROCESS RIGHTS

WERE NOT VIOLATED BY A_ VALID

JUDGMENT ENTERED AGAINST HIM FOR

ATTORNEY'S FEES MORE THAN THREE

YEARS AGO, ASSUMING THE PETITIONER'S

PETITION FOR WRIT OF CERTIORARI WAS

THIS IS AN APPROPRIATE CASE FOR THE

IMPOSITION OF MONETARY SANCTIONS

AGAINST THE PETITIONER UNDER RULE

WR i ok a cakcin touche bneckntaehacuncencuiiecemst enn pandve 15

ee chs icinsak pincspuioadsunauvunnadnesoesenenninees 16

iV

TABLE OF CITED AUTHORITIES

Cases Cited:

Bankers Mortgage Company v. United States, 453 F.2d 73,

79 (Sth Cir. 1970), cert. denied 399 U.S. 927, 90 S. Ct. 2242.

Be Sa, TD PO vies cavenssvavedsesacecsiousesecn 11,12

Booker v. Dugger, 825 F.2d 281, 284 (11th Cir. 1987)...10

Clark v. Florida, 475 U.S. 1134, 106 S. Ct. 1784, 90 L. Ed.

Pe Fe na naevicetatvnssrccpeeeysaues eee 15

County of Sonoma, et al. v. Isbell, et al.. 439 U.S. 996. 99 S.

Ct. 597, 58 L. Ed. 2d 669 (1978)...........ccccccccccccccecces 2

Di Vito v. Fidelity & Deposit Company of Maryland, 36]

F208 FOG, FSP C7 Civ. 1SGG)... oon cc cca ccccccvccscccccccccces, 10

Fogg, et al. v. Welcome, 432 U.S. 911, 97 S. Ct. 2960, 53 L.

BG. Be BE PFT ie svconckencacdccésulesosdeies te 2

Forrow v. Estelle, 419 U.S. 1013, 95 S. Ct. 333, 42 L. Ed. 2d

EE RPI iivsnnsinscicnnindeatsGantiankente me deen 2

Haitian Refugee Center, Inc. v. Baker, 502 U.S. Siam 132

S. Ct. 1245, 117 L.Ed.2d 477 (1992)....... occ ee cccccccce cece 1

Johnson Waste Materials v. Marshall, 611 F.2d 593, 600 (5th

ee Mm Meet Pe np Nm Nes crea aN 10

Levitt v. University of Texas, 847 F. 2d 221

Ce Baie BOPP cniks Snskesecananeudoeeoeesesaeeeeaae 13

Liljeberg v. Health Services Acquisition Corporation, 46

U.S. 847, 859-60, 108 S. Ct. 2194,

hk Be ie OF CR iis ccs nentusasesaveantbustiaveencuseus 13

Montgomery v. Hall, 592 F.2d 278 (Sth Cir. 1979).......... 10

National Autobrokers Corporation v. General Motors

Corporation, 572 F. 2d 953, 958 (2d Cir. 1978).............. 13

National Surety Company v. State Bank, 120 F. 593, 599

ee SEs Ss dave daukendscssabaconevnsdivaneckiss acetone 1]

Parker v. Connors Steel Company, 855 F. 2d 1510, 1524

PEGG Gs CD acsesenccsccnvsdssbcausecusaisunseiedcareanene 13

Phillips v. Joint Legislative Comm., 637 F. 2d 1014 (Sth Cir.

GR TR PPP cscasecsxevessspoideduneusunensacepeniertieremeneme 13

Rosen v. Sugarman, 557 F. 2d 794, 797-98 (2d Cir. 1966),

cert. denied, 439 U.S. 1072, 99 S. Ct. 844, 59 L. Ed. 2d 38

(RFF sccprenvnssyunsrretnententstessesnnniamiepebahalaineten 13

Rozier v. Ford Motor Company, 573 F.2d 1332 (Sth Cir.

PF Pack 0056 0ecencecensdcunkstrsdevscueveacdusarneahensbecabinedes 10

Securities and Exchange Commission v. E.S.M. Group, Inc.,

et al., 835 F.2d 270, 272-273 (11th Cir. 1988)................. 11

Sunset Scavenger Company, et al. v. William Roberts, et al.,

434 U.S. 877, 98 S. Ct. 229, 54 L. Ed. 2d 156 (1977).........2

The Travelers Indemnity Company v. Gore, et al., 761 F.2d

SSG, SOOe CE RUG: SPM Beds ccnvssnnivenconsnnanecndvasvezcnm 12

Vi

Sg. ieee

Toledo Scale Company v. Computing Scale Company. 261

U.S. 399, 425, 43 S. Ct. 458, 465,

OF Ba ee Fe I aces ee iuecidangusincaeasecee eee 12

United States v. Greenough, 782 F. 2d 1556, 1558 (11th Cir.

SPUD dr nau iinsundeatpusesheanccsineueeedecuied sacs cunaarmexkemorens 13

Statutes, Rules, Canons Cited:

ee A Ma phi oes oiadanaeks des oetaereiahaiceias ehaeesees hao

es seduces ccna viaresentinaias baesddeenten 3,13,14

Fe eee PINE Beso cabs soaviesepdwashcunasacsbarassateeeesiins 3

FUE ees EM RT ERs dak i560 akan bakade donvduasvenkeeskeotacens 5,7

Re ee Nes vo cian innacs dovecuuuceauuucrcsavseeemuennnbkans 3

FE ee TEs vi ndnouan shall skin ur anevninakolositadnetscean 3

PE Whee eRe i sctcwh ces hiueh sducasdaanaucdecetixescs 4,6

Rule 10, Rules of the Supreme Court of the U.S............. 1,2

Rule 13, Rules of the Supreme Court of the U.S.............. 2

Rule 13.1, Rules of the Supreme Court of the U.S............. 4

Rule 42.2, Rules of the Supreme Court of the U.S.....5,15,16

Rule 43, Rules of the Supreme Court of the U.S............... 5

Rule 59(b), Federal Rules of Civil Procedure.................. 4

Rule 60, Federal Rules of Civil Procedure..................0.. 12

Rule 60(b), Federal Rules of Civil Procedure..2,3,4,7,9,10,11

Rule 60(b)(3), Federal Rules of Civil Procedure........... 9,10

Vii

ee ee a ne

CITATIONS OF UNOFFICIAL REPORTS OF

ORDERS ENTERED

All relevant orders entered from Courts below were

unreported. Relevant orders appear within the Petitioner's

Appendix. References are made in this brief to judgments

and orders appearing within the Petitioner's Appendix.

STATEMENT OF THE BASIS FOR JURISDICTION

The merits of this appeal are utterly frivolous, as

were most of the efforts of the Petitioner, Gabe Kaimowitz

(hereinafter referred to as the "Petitioner"), in both the U.S.

District Court for the Middle District of Florida and the U.S.

Court of Appeals for the Eleventh Circuit. The Petitioner

has failed in this appeal to establish any compelling grounds

to grant his Petition for Writ of Certiorari. In fact, the

Petition for Writ of Certiorari fails to even mention Rule 10,

Rules of the Supreme Court of the United States, which

provides guidance as to the compelling grounds this Court

generally considers when granting certiorari. See generally

Haitian Refugee Center, Inc. v. Baker, 502 U.S. 1122, 112

S. Ct. 1245, 117 L.Ed.2d 477 (1992).

Pursuant to Rule 10, Rules of the Supreme Court of

the United States, review by this Court on a writ of certiorari

is not a matter of right, but of judicial discretion. A petition

for a writ of certiorari will be granted by this Court only for

compelling reasons. In granting a petition for writ of

certiorari, this Court usually considers whether a U.S. Court

of Appeals has entered a decision in conflict with the

decision of another United States Court of Appeals on the

same important matter; whether a U.S. Court of Appeals has

decided an important federal question in a way that conflicts

with the decision by a state court of last resort; or has so far

departed from the accepted and usual course of judicial

]

proceedings, or sanctioned such a departure by a lower court,

as to call for an exercise of this Court’s supervisory power.

A petition for writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law. Rule 10,

Rules of the Supreme Court of the United States.

Notwithstanding the fact that the Petitioner has failed

to establish any of the considerations governing review on

certiorari found in Rule 10, Rules of the Supreme Court of

the United States, the Petitioner's Petition for Writ of

Certiorari is an untimely attempt to circumvent Rule 13,

Rules of the Supreme Court of the United States, which

mandates that a petition for writ of certiorari to review a

"judgment" in any case, civil or criminal, entered by a United

States Court of Appeals, is timely when it is filed with the

Clerk of this Court within 90 days after entry of the

judgment. See County of Sonoma, et al. v. Isbell, et al., 439

U.S. 996, 99 S. Ct. 597, 58 L. Ed. 2d 669 (1978) (petition for

certiorari was jurisdictionally untimely); Sunset Scavenger

Company, et al. v. William Roberts, et al., 434 U.S. 877, 98

S. Ct. 229, 54 L. Ed. 2d 156 (1977) (petition for writ of

certiorari denied as untimely); Fogg, et al. v. Welcome, 432

U.S. 911, 97 S. Ct. 2960, 53 L. Ed. 2d 1084 (1977) (petition

for writ of certiorari denied as untimely filed); Forrow_v.

Estelle, 419 U.S. 1013, 95 S. Ct. 333, 42 L. Ed. 2d 287

(1974) (petition for writ of certiorari denied as untimely.)

Essentially, the Petitioner bravely asserts that his

Petition for Writ of Certiorari is timely because it was filed

with this Court within 90 days of the dismissal on November

6, 2003, of an appeal deemed to be frivolous by the U.S.

Court of Appeals for the Eleventh Circuit. That appeal was

from an Order dated July 23, 2003, denying as "untimely" a

Rule 60(b) motion filed with the U.S. District Court for the

Middle District of Florida, Orlando Division, substantially

2

more than one year from the dates of entry of judgments to

which the Rule 60(b) motion was directed, namely, a

summary judgment entered against Petitioner on November

26, 1999, and a $20,000 judgment entered against Petitioner

on January 25, 2001, for attorney's fees. The Petition for

Writ of Certiorari is an unclever, obvious stalling device to

avoid the finality of judgments entered long ago against the

Petitioner, especially the $20,000 judgment entered against

him on January 25, 2001, which remains unsatisfied. The

frivolousness of this appeal is commensurate with the

Petitioner's tenacious pursuit of a frivolous and vexatious

lawsuit filed against the Respondents in the absence of any

evidence. This appeal should be dismissed for want of

jurisdiction.

STATUTES AND RULES INVOLVED

28 U.S.C. §455(a) states in pertinent part: "Any

justice, judge, or magistrate judge of the United States shall

disqualify himself in any proceeding in which his

impartiality might reasonably be questioned."

31 U.S.C. §3729(a)(1) states in pertinent part:

"Liability for certain acts. -- Any person who (1) knowingly

presents, or causes to be presented, to an officer or employee

of the United States Government or a member of the Armed

Forces of the United States a false or fraudulent claim for

payment or approval; ... is liable to the United States

Government for a civil penalty of not less than $5,000 and

not more than $10,000, plus 3 times the amount of damages

which the Government sustains because of the act of that

person, ..."

31 U.S.C. §3730(b) states in pertinent part: "Actions

by private persons.-- (1) A person may bring a civil action

for a violation of section 3729 for the person and for the

3

United States Government. The actions shall be brought in

the name of the Government..."

31 U.S.C. §3730(d)(4), states: "If the Government

does not proceed with the action and the person bringing the

action conducts the action, the court may award to the

defendant its reasonable attorney's fees and expenses if the

defendant prevails in the action and the court finds that the

claim of the person bringing the action was clearly frivolous,

clearly vexatious or brought primarily for purposes of

harassment."

Rule 60(b), Federal Rules of Civil Procedure, states

in pertinent part: "Mistakes; Inadvertence; Excusable;

Neglect; Newly Discovered Evidence; Fraud, Etc. On

motion and upon such terms as are just, the court may relieve

a party or a party's legal representative from a final judgment

order or proceeding for the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence which by due diligence could not have

been discovered in time to move for a new trial under Rule

59(b); (3) fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct of an

adverse party; (4) the judgment is void; (5) the judgment has

been satisfied, released, or discharged, or a prior -judgment

upon which it is based has been reversed or otherwise

vacated, or it is no longer equitable that the judgment should

have perspective application; or (6) any other reason

justifying relief from the operation of the judgment..."

Rule 13.1, Rules of the Supreme Court of the United

States, states in pertinent part: "Unless otherwise provided by

law, a petition for a writ of certiorari to review a judgment in

any case, civil or criminal, entered by a state court of last

resort or a United States court of appeals (including the

United States Court of Appeals for the Armed Forces) is

4

timely when it is filed with the Clerk of this Court within 90

days after entry of the judgment..."

Rule 42.2, Rules of the Supreme Court of the United

States, states: "When a petition for writ of certiorari, an

appeal, or an application for other relief js frivolous, the

Court may award the respondent or appellee just damages,

and single or double costs under Rule 43. Damages or costs

may be awarded against the petitioner, appellant, or

applicant, against the party's counsel, or against both party

and counsel."

STATEMENT OF THE CASE

This iong and protracted litigation commenced with

the Petitioner filing a qui tam action against Orlando, Florida

and Rick Bernhardt (hereinafter referred to as the

"Respondents"), as well as the Orlando Neighborhood

Improvement Corporation, alleging violations under the

False Claims Act, 31 U.S.C. §3729-3733. (p.3-a, Petitioner's

App.) The Petitioner's complaint alleged that the

Respondents had made claims violative of federal law to

induce Community Block Grant Development ("C.D.B.G.")

funds and other grants and loans from the U.S. Department

of Housing and Urban Development ("H.U.D."). (p. 8-a,

Petitioner's App.) The Petitioner's complaint also sought

“injunctive relief to bar use of such funds for maintenance

and expansion of a commercial district, low-income public

housing, and alleged rehabilitation of multi-family low-

income rental units in virtually all black neighborhoods of

Orlando." (p. 8-a, Petitioner's App.) Over the course of the

proceedings in the district court, the Petitioner filed

thousands of pages of documents, deposition transcripts,

affidavits, newspaper articles, collages, and other paper,

much of which was repetitive, and most of which was

completely irrelevant to the list of False Claims alleged by

5

the Petitioner. (p.23-a, Petitioner's App.) In light of the

voluminous documentation submitted by the Petitioner in the

district court, the Petitioner left no stone unturned in his

search for false or fraudulent claims. However, despite

voluminous filings, and what the U.S. District Court for the

Middle District of Florida, Orlando Division, described as an

“expensive and unfruitful fishing expedition", the Petitioner

failed to present any evidence which demonstrated that any

of the Respondents knowingly made a false or fraudulent

claim to the federal government in violation of the False

Claims Act. (p. 24-a, Petitioner's App.)

All of the Respondents moved for summary

judgment. The U.S. District Court for the Middle District of

Florida eventually entered summary judgments in favor of

the Respondents and against the Petitioner in this qui tam

action on November 25, 1996. (p. 18-a, Petitioner's App.)

Summary judgments were entered in favor of the

Respondents because the Respondents had presented

evidence in the district court which demonstrated that they

had taken all reasonable efforts, including, internal and

external audits, to ensure substantial compliance with all

applicable federal laws relating to all federal funding for all

projects. Based on the frivolousness of the qui tam action,

the Respondents requested attorney's fees and costs under 31.

U.S.C. §3730(d)(4). (p. 36-a, Petitioner's App.) Thereafter,

the Petitioner began an appellate process which can only be

described as tenacious.

Eventually, on February 17, 1999, the U.S. Court of

Appeals for the Eleventh Circuit granted the Respondents’

motions for attorney's fees as to entitlement and remanded

the matter to the U.S. District Court for the Middle District

of Florida, Orlando Division, for a hearing to determine the

reasonable amount of attorney's fees to be awarded after

finding that the case was clearly frivolous and vexatious for

6

7 iin iinet aati

PATER / NE aE Rist I eS YS Re EEA AD PNAS PLEAS COPED db WH SD eT

pd ALi” lt a ER Nana Ra leer ree KE ne sna Uh eT

the purpose of awarding appellate fees. (p. 36-a, Petitioner's

App.) After hearings on the issue of attorney's fees were

held, U.S. Magistrate Judge David A. Baker of the US.

District Court for the Middle District of Florida, Orlando

Division, recommended that the Respondents be awarded

attorney's fees of $20,000. (p. 46-a, Petitioner's App.) U.S.

District Judge Patricia C. Fawsett of the U.S. District Court

for the Middle District of Florida, Orlando Division,

approved the aforementioned recommendation and on

January 25, 2001, judgment was entered in favor of the

Respondents and against the Petitioner in the amount of

$20,000. (p. 46-a, Petitioner's App.) Undeterred, the

Petitioner appealed that judgment, as well as a denial of his

motion to recuse the district judge under 28 U.S.C. §455. On

February 14, 2002, the U.S. Court of Appeals for the

Eleventh Circuit affirmed the award of $20,000 in attorney's

fees in favor of the Respondents by the U.S. District Court

for the Middle District of Florida, Orlando Division. (p. 59-a,

Petitioner's App.) The United States Court of Appeals for the

Eleventh Circuit also affirmed the denial of the Petitioner's

motion to recuse the district court judge under 31 U.S.C.

§3729-3733.

Not one to suffer defeat lightly, on June 13, 2003, the

Petitioner filed his Motion/Memo of Law to Set Aside

Judgments Obtained By Fraud, Misrepresentation with the

U.S. District Court for the Middle District of Florida,

Orlando Division, which alleged conspiratorial judicial

misconduct in relation to a newly proposed federal

courthouse in Orlando. (p. 3-a, Petitioner's App.) The

Petitioner's Motion/Memo of Law To Set Aside Judgments

Obtained By Fraud, Misrepresentation was filed by the

Petitioner pursuant to Rule 60(b), Federal Rules of Civil

Procedure. In its Order dated July 23, 2003, the U.S. District

Court for the Middle District of Florida, Orlando Division,

denied the Petitioner's Motion/Memo of Law To Set Aside

7

Judgments Obtained By Fraud, Misrepresentation as

untimely since the orders to which the motion was directed

were entered substantially more than one year prior to the

filing of the Petitioner's Motion/Memo of Law to Set Aside

Judgments Obtained by Fraud, Misrepresentation. (p. 3-a,

Petitioner's App.) In the same July 23, 2003, Order, the U.S.

District Court for the Middle District of Florida, Orlando

Division, stated as to the Petitioner's allegations:

"In support of his motion, he

has made repeated allegations

of conspiratorial judicial

misconduct in relation to a

newly proposed _federal

courthouse in Orlando. These

vague allegations are not only

leveled against district judges

in Orlando, but are also

directed against judges on the

Eleventh Circuit Court of

Appeals. Judges of this court,

as well as the Eleventh Circuit,

previously addressed these

allegations, and it is not

Necessary to address them

again, because Qui Tam

Plaintiff's motion is untimely."

From that Order, the Petitioner appealed to the U.S.

Court of Appeals for the Eleventh Circuit. On November 6,

2003, the U.S. Court of Appeals for the Eleventh Circuit

dismissed that appeal as "frivolous." (p. l-a, Petitioner's

App.) It is from that dismissal by the U.S. Court of Appeals

for the Eleventh Circuit, that the Petitioner claims that this

Petition for Writ of Certiorari is timely with this Court.

8

es. Mn nar st, Cabinet ate bh Base ete mand) wires

ARGUMENT

I. RULE 60(b), FEDERAL RULES OF CIVIL

PROCEDURE DOES NOT PROVIDE THE

PETITIONER WITH RELIEF FROM A VALID

JUDGMENT _FOR ATTORNEY'S FEES

ENTERED MORE THAN THREE YEARS AGO

ASSUMING __ARGUENDO THAT __THE

PETITIONER'S PETITION FOR WRIT OF

CERTIORARI WAS TIMELY

Rule 60(b), Federal Rules of Civil Procedure

provides, in pertinent part, that a court may relieve a party:

from a final judgment, order,

or proceeding for the following

reasons...(3) fraud (whether

heretofore denominated

intrinsic or extrinsic),

misrepresentation, or other

misconduct of an adverse

party...The motion 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.

Since the Petitioner's Motion/Memo Of Law To Set

Aside Judgment(s) Obtained By Fraud, Misrepresentation

originally filed with the U.S. District Court for the Middle

District of Florida, Orlando Division, was brought more than

one (1) year after the judgments in question were entered,

relief could ete provided under Rule 60(b)(3), Federal

Rules of Civil Rrocedure to the Petitioner.

9

Even if the Petitioner's Motion/Memo Of Law To Set

Aside Judgment(s) Obtained By Fraud, Misrepresentation

could have been maintained under Rule 60(b)(3), Federal

Rules of Civil Procedure, the clear and convincing standard

of proof governs. Booker v. Dugger, 825 F.2d 281, 284

(11th Cir. 1987) (quoting Montgomery v. Hall, 592 F.2d 278

(Sth Cir. 1979)). It is clear that the policy of finality of

judgments requires the same, if not more stringent, standards

be applied to independent actions alleging fraud on the court

which are brought after the one (1) year time limit has run.

See Booker, supra. at p.284; see also Johnson Waste

Materials v. Marshall, 611 F.2d 593, 600 (Sth Cir. 1980);

Rozier_v. Ford Motor Company, 573 F.2d 1332 (Sth Cir.

1978). "[C]Jonclusory averments of the existence of fraud

made on information and belief and unaccompanied by a

statement of clear and convincing probative facts which

support such belief do not serve to raise the issue of the

existence of fraud [under Rule 60(b)]." Booker, supra. at

pp.283-284; see also Di Vito v. Fidelity & Deposit Company

of Maryland, 361 F.2d 936, 939 (7th Cir. 1966).

Assuming arguendo' that the Petitioners’

Motion/Memo Of Law To Set Aside Judgment(s) Obtained

By Fraud, Misrepresentation was an attempt to maintain an

independent action within the meaning of the savings clause

of Rule 60(b), Federal Rules of Civil Procedure, the elements

for an independent action were not shown by the Petitioner.

The United States Court of Appeals for the Eleventh

Circuit has held that the elements of an independent action

under Rule 60(b) are:

(1) a judgment which

ought not, in equity and good

conscience, be enforced; (2) a

10

good defense to the alleged

cause of action in which the

judgment is founded; (3) fraud,

accident, or mistake prevented

the defendant in the judgment

from obtaining the benefit of

his defense; (4) the absence of

fraud or negligence on the part

of the defendant; and (5) the

absence of any adequate

remedy at law.

Securities and Exchange Commission v. E.S.M. Group, Inc.,

et_al., 835 F.2d 270, 272-273 (11th Cir. 1988); see also

Bankers Mortgage Company v. United States, 453 F.2d 73,

79 (Sth Cir. 1970), cert. denied 399 U.S. 927, 90 S. Ct. 2242,

26 L. Ed. 2d 793 (1970) (quoting National Surety Company

v. State Bank, 120 F. 593, 599 (8th Cir. 1903)).

In the case at bar, the Petitioner could not establish

the elements necessary to maintain an independent action

under Rule 60(b). The fraud which the Petitioner asserted

tainted the outcome of the judgments in question had nothing

to do with the Respondents’ entitlement to summary

judgment and entitlement to attorney's fees. In fact, the

Petitioner had no good defense to the Respondents’ motion

for summary judgment or motion for attorney's fees despite

voluminous filings in what appeared to be an expensive and

unfruitful fishing expedition. The Petitioner failed to present

any evidence to the district court which demonstrated that

any defendant knowingly made a false or fraudulent claim to

the federal government in violation of the False Claims Act.

Since there were no material issues of fact presented

regarding the knowledge of the Respondents of any false

claims, or any false claims being filed, the motions for

summary judgment of the Respondents were properly

1

granted by the district court and the subsequent entry of a

judgment for attorney's fees against the Petitioner was

completely proper. For fraud to lay a foundation for an

independent action under Rule 60(b), Federal Rules of Civil

Procedure, it must be such that is was not an issue in the

former action, nor could it have been put in issue by the

reasonable diligence of the opposing party. See The

Travelers Indemnity Company v. Gore, et al., 761 F.2d 1549,

1552 (11th Cir. 1985); see also Toledo Scale Company v.

Computing Scale Company, 261 U.S. 399, 425, 43 S. Ct.

458, 465, 67 L. Ed. 719 (1923).

The Petitioner could not use an independent action

under Rule 60(b) as a vehicle for the relitigation of issues.

"Courts have consistently held that a party is precluded by

res judicata from relitigation in the independent equitable

action issues that were open to litigation in the former action

where he had a fair opportunity to make his claim or defense

in that action." Bankers Mortgage Company v. United

States, 453 F.2d 73, 79 (Sth Cir. 1970); see also The

Travelers Indemnity Company, supra at p. 1552. The record

below is replete with repeated allegations by the Petitioner of

conspiratorial judicial misconduct in relation to a newly

proposed federal courthouse in Orlando. These vague

allegations were not only leveled against district judges in

Orlando, but were also directed against judges with the U.S.

Court of Appeals for the Eleventh Circuit. District judges

with the U.S. District Court for the Middle District of

Florida, as well as judges with the U.S. Court of Appeals for

the Eleventh Circuit addressed these frivolous conspiratorial

judicial misconduct allegations in the proceedings below.

Notwithstanding the fact that Rule 60, Federal Rules

of Civil Procedure could not provide the Petitioner with any

relief, this appeal is yet another vehicle for the Petitioner to

again allege conspiratorial judicial misconduct associated

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with a new federal courthouse in Orlando. The Petitioner's

vague, unsupported conspiracy theories involving federal

judges did not rise to a level that required disqualification

under 28 U.S.C. §455 for purposes of awarding attorney's

fees against the Petitioner after his unsuccessful pursuit of a

frivolous lawsuit. Although the purpose of Rule 455(a) is

the promotion of public faith in the integrity of the judicial

process, a second aim of the recusal statute is to ensure that a

judge does not recuse herself on "unsupported, irrational or

highly tenuous speculation." See Liljeberg v. Health

Services Acquisition Corporation, 46 U.S. 847, 859-60, 108

S. Ct. 2194, 100 L. Ed. 2d 855 (1988); United States v.

Greenough, 782 F. 2d 1556, 1558 (11th Cir. 1986).

The standard for recusal under §455(a) is "whether an

objective, disinterested, lay observer fully informed by the

facts underlying the grounds on which recusal was sought

would entertain significant doubt about the judge's

impartiality." United States v. Torkington, 874 F. 2d 1441,

1446 (11th Cir. 1989) (quoting Parker _v. Connors Steel

Company, 855 F. 2d 1510, 1524 (11th Cir. 1988)). It is well

settled that a federal judge has "an affirmative duty" not to

disqualify himself or herself unnecessarily. National

Autobrokers_ Corporation _v: General Motors Corporation,

572 F. 2d 953, 958 (2d Cir. 1978); Rosen v. Sugarman, 557

F. 2d 794, 797-98 (2d Cir. 1966), cert. denied, 439 U.S.

1072, 99 S. Ct. 844, 59 L. Ed. 2d 38 (1979); Levitt_v.

University of Texas, 847 F. 2d 221 (Sth Cir. 1988) (denying

motion to disqualify based upon the plaintiff's conclusory

allegations that the judge "received ex parte communications

about the case either through his wife or from Dr. Sawyer");

see also Phillips v. Joint Legislative Comm., 637 F. 2d 1014

(Sth Cir. Unit A 1981) ("[S]ection 455 does not require the

judge to accept all allegations by the moving party as true.").

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The district judge, as well as judges of the U.S. Court

of Appeals for the Eleventh Circuit were not disqualified by

the standard for recusal under §455(a) from deciding issues

associated with judgments entered against the Petitioner

because of their knowledge of a new federal courthouse in

Orlando, which has not even been built yet. The Petitioner's

unrelentless claims that the impartiality of federal judges was

compromised in this case because of their knowledge of a

new federal courthouse in Orlando, is utterly frivolous

especially coming from an attorney.

Il. |THE PETITIONER'S DUE PROCESS RIGHTS

WERE NOT VIOLATED BY A VALID

JUDGMENT ENTERED AGAINST HIM FOR

ATTORNEY'S FEES MORE THAN THREE

YEARS AGO, ASSUMING ARGUENDO THAT

THE PETITIONER'S PETITION FOR WRIT

OF CERTIORARI WAS TIMELY

The Petitioner's claim that his due process rights were

violated because he did not have a meaningful opportunity to

be heard regarding the Respondents’ entitlement to attorney's

fees, coming from an attorney, is so utterly frivolous as to

not warrant any discussion. However, it should be noted that

with regard to the Petitioner's opportunity to be heard by the

district court on the issue of attorney's fees, the Petitioner's

own Petition for Writ of Certiorari admits at page 12 that the

"magistrate held more than ten hours of hearings on the

amount of fees owed to Orlando and Bernhardt on

September 1, and October 27, 2000." The extended

proceedings associated with this case make it clear that no

one has denied Petitioner his day in court. Clearly, the

Petitioner's voluminous filings with the U.S. Court of

Appeals for the Eleventh Circuit further demonstrate that the

Petitioner had more than an ample opportunity to be heard

on all of the issues he has raised in this qui tam action. The

os

Petitioner's distorted framing of the Due Process Clause

illuminates the frivolousness of this entire appeal.

Ill. THIS IS AN APPROPRIATE CASE FOR THE

IMPOSITION OF MONETARY _ SANCTIONS

AGAINST_ THE PETITIONER UNDER RULE

42.2

The Petitioner, an attorney licensed by The Florida

Bar, has demonstrated a contempt for the federal courts and

our system of justice by raising patently frivolous claims. As

a result of the Petitioner's endless efforts to keep this case

alive, the Respondents have been denied their right to put an

end to this tedious and expensive litigation. In light of the

frivolousness of this appeal, as well as the Petitioner's status

as a member to The Florida Bar, this appeal is especially

suited for the imposition of monetary sanctions under Rule

42.2, Rules of the Supreme Court of the United States. Rule

42.2 provides that "[w]hen an appeal or petition for writ of

certiorari is frivolous, the Court may award the appellee or

the respondent appropriate damages."

Clearly, this is an appropriate case for monetary

sanctions. See Clark v. Florida, 475 U.S. 1134, 106 S. Ct.

1784, 90 L. Ed. 2d 330 (1986) ("The merits of this appeal are

utterly frivolous, as were most of appellant's persistent

efforts in the courts of Florida...This claim, coming from an

attorney, is so utterly frivolous so as to not warrant any

further discussion. All this suggests is that appellant

considers the judicial system a laboratory where small boys

can play."). Monetary sanctions under Rule 42.2 should be

awarded against Petitioner in favor of the Respondents based

on the frivolousness of this appeal. .

CONCLUSION

Based on the foregoing authority, certiorari should be

denied. Respectfully, this Court should put an end to this

tedious and frivolous litigation and consider the imposition

of monetary sanctions against the Petitioner pursuant to Rule

42.2, Rules of the Supreme Court of the United States.

Respectfully submitted,

Bobby G. Palmer, Jr., Esquire

Hilyard, Bogan & Palmer, P.A..

Post Office Box 4973

Orlando, FL 32802-4973

(407) 425-4251

Attorneys for Orlando, Florida

and Rick Bernhardt

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