Petition for Writ of Certiorari — Herring v. United States (No. 05-821)
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the federal courts to review such claims of privilege in
camera to evaluate their validity and proper scope, and
therefore affirmed. Jd. at 996-98. See also C8 (4% 19).
The United States successfully petitioned for certiorari
and urged the Supreme Court to reverse the widows’
judgments. C8 ("11 20-21). In its petition and its briefs, the
government advanced an even more expansive claim of
privilege, insisting that the executive branch might lawfully
withhold any document from judicial scrutiny if it deemed
secrecy in the public interest. United States v. Reynolds, 345
US. 1, 6 (1953).
A majority of this Court, however, declined to rule so
broadly, choosing instead to rely on Secretary Finletter’s
and Major General Harmon’s affidavits:
Experience in the past war has made it common
knowledge that air power is one of the most potent
weapons in our scheme of defense, and that newly
developing electronic devices have greatly enhanced
the effective use of air power. It is equally apparent
that these electronic devices must be kept secret if
their full military advantage is to be exploited in the
national! interests. On the record before the trial
court it appeared that this accident occurred to a
military plane which had gone aloft to test secret
electronic equipment. Certainly there was a reason-
able danger that the accident investigation report
would contain references to the secret electronic
equipment which was the primary concern of the
mission.
345 U.S. at 10 (emphasis added). Indeed, the Secretary had
attested that the aircraft and crew “were engaged in a highly
secret mission” and the documents were “concerned with
confidential missions and equipment of the Air Force.”
Similarly, the Judge Advocate General had sworn that
furnishing the reports and witness statements would
compromise “national security ... and the development of
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highly technical and secret military equipment.” Jd. at 4-5,
10. In the majority’s view, these representations that the
documents contained “military secrets” were sufficient to
forestall disclosure even to the district judge, absent a more
compelling necessity. Jd. at 10-11. The balance between the
government’s need for secrecy and the widows’ need for the
documents weighed in favor of the government:
There is nothing to suggest that the electronic
equipment, in this case, had any causal connection
with the accident. Therefore, it should be possible
for respondents to adduce the essential facts as to
causation without resort to material touching upon
military secrets. Respondents were given a reason-
able opportunity to do just that, when petitioner
formally offered to make the surviving crew
members available for examination. We think that
offer should have been accepted.
Id. at 11. The Court, accordingly, reversed.°
After remand, without the benefit of the accident report
and witness statements, the widows settled their cases with
the government for $170,000.* The cases were discontinued
on August 5, 1953. C9 (11 22).
In early 2000, Palya’s daughter, Judith, learned
through internet research that previously-classified Air
Force documents regarding military aircraft accidents had
been declassified and were publicly available. Curious about
the “secret mission” that had occupied her father on the day
of his death, she ordered a copy of materials relating to her
3. Chief Justice Vinson wrote for the majority. Justices Black,
Frankfurter and Jackson dissented “substantially for the reasons set
forth in the opinion of Judge Maris [of the Court of Appeals] below.” 345
U.S. at 12.
4. The widows noticed depositions of several survivors of the crash and
it appears that those depositions were taken prior to settlement.
Petitioners do not have copies of any transcripts of such depositions. It
is possible they were never ordered transcribed.
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father’s accident. She soon saw what the government had
fought so hard to keep her mother and a federal district
judge from seeing. C9-10, C104-162 (191 23-25 & Ex. J).°
The accident report and witness statements contained
none of the military or national security secrets the
government had claimed. The materials nowhere described
any part of the “secret mission” in which Reynolds, Palya
and Brauner were involved. They did not refer to any
“newly developing electronic devices” or “secret electronic
equipment” aboard the plane or elsewhere. They made no
mention of anything that was or should have been
“confidential.” Indeed, they recorded nothing beyond the
events surrounding the crash and the likely reasons for its
occurrence, none of which had anything to do with the
mission of the flight or the confidential equipment on board.
C10, C11-12 (11 26, 32-34).°
Thus, petitioners’ complaint alleges:
® The affidavits offered by Secretary Finletter and
Major General Harmon in support of the Air Force’s
claim of privilege were intentionally false and
5. The documents Judith Palya Loether obtained included all of the
materials identified in the district court’s September 21, 1950 order. C9-
10 ({1 25). Copies of these documents were attached to the Complaint in
their original form as Exhibit I and in printed form as Exhibit J. Because
this Court’s rules forbid the attachment of originals, only Exiivit J, the
printed form, is included in Appendix C.
6. The accident report identifies the main cause of the accident as “he
Air Force’s failure to comply with certain technical orders which
mandated “changes in the exhaust manifold assemblies for the
purposes of eliminating a definite fire hazard” C11, C110 (1 33 & Ex.
J). As a result, “[t]he aircraft is not considered to have been safe for
flight,” and when the No. 1 engine on the plane caught fire, the fire could
not be contained and the plane plummeted to the ground. C116 (Ex. J).
The declassified documents also reveal that one of the government’s key
interrogatory responses was false. C169-170, C175 (Ex. K) (Interrogatory
3l(a): “Have any modifications been prescribed by defendant for the
engine in its B-29 type aircraft to prevent overheating of engines and/or
reduce the fire hazard in the engine?” Answer: “No.”).
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misleading. They were proffered to cover up and
suppress conclusive evidence that the Air Force’s
negligence had caused the deaths of Reynolds, Palya
and Brauner, and with a view toward fabricating a
“test case” for a favorable judicial ruling on claims of
an executive or “state secrets” privilege -— a case
built on a fraudulent premise. C11-13 (19 32-35).
o The affidavits were made with knowledge of their
falsity or in reckless disregard for whether the
statements they contained were true or false.
Indeed, the affidavits’ falsity is apparent upon
reading the accident report and witness statements
themselves. They provide no confidential informa-
tion of any kind concerning the plane’s secret
mission or equipment — the “secret” topics the Air
Force claimed and the courts at the time understood
them to address. C13 (79 36-38). And,
o The Air Force intended that the federal courts rely
upon the affiants’ testimony to deny the widows
evidence to which they were entitled and, later, to
reverse the judgments rendered in the widows’
favor. And, ultimately this Court did rely on the Air
Force’s falsehoods. The government thereby prac-
ticed a fraud on this Court and worked a grave
miscarriage of justice. C13-15 (19 39-45).
C. The Decisions Below.
In dismissing petitioners’ complaint, the district court
agreed that Secretary Finletter and Major General Harmon
were acting as officers of the court in asserting a “state
secrets” privilege. B12. The court went on to hold, however,
that courts generally should “defer on some level to
governmental claims of privilege” for military secrets and
it was therefore obliged to give the Finletter and Harmon
affidavits “a broader reading” than the federal judges and
justices who considered them fifty years before. B9-11.
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From [the affidavits], Plaintiffs deduce that only the
mission and electronic equipment were confidential,
but a broader reading of the affidavits suggests that
beyond the mission itself, disclosure of technical
details of the B-29 bomber, its operation, or
performance would also compromise national
security.
B10-11. The district court then pointed to references in the
report to technical aspects of the plane’s operation and
performance that it believed “in the hands of the wrong
party could surely compromise national security,” B11-12,
and — based on its reading of the affidavits - ruled as a
matter of law that appellants could not show that “the Air
Force sought to defraud the Courts.” B12.
To buttress this ruling, the district court also undertook
to identify a purported “public record” on the development
of a Soviet copycat bomber. Based on its own independent
research (which petitioners had no opportunity to address or
contest), the district court posited that the Soviet Union’s
Tu-4 “copied the B-29 almost exactly, including the fire-
prone engines.” B16. On this mistaken premise,’ the district
judge speculated that “it seems that the accident investiga-
tion report may have reasonably contained sufficient
intelligence, if not about the secret equipment or mission,
then about ongoing developments in Air Force technical
engineering, to warrant an assertion of the military secrets
privilege.” B18. Thus, the district court held that petitioners
7. The Tu-4 did not copy the B-29’s engine, but instead used the
Shestov Ash-73TK, a Soviet variant of a different U.S. engine that the
Soviets had licensed years before. Von Hardesty, Made in the
U.S.S.R., Air & Space/Smithsonian, Feb./Mar. 2001 (available at
http://www.airandspacemagazine.com/ASM/Mag/Index/2001/FM/TU-
4.html). The existence of the Tu-4 was, moreover, public knowledge a
year before the crash. It was disclosed in a 1947 hearing chaired by
Secretary Finletter. See “Russian Air Gain Noted by Spaatz,” New
York Times, Nov. 18, 1947, at 33.
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could not challenge the government’s privilege claim as
fraudulent.
The Court of Appeals took a different approach. Its
keynote was that “(t]he presumption against the reopening
of a case ... must be not just a high hurdle to climb but a
steep cliff-face to scale.” A3. This “steep cliff-face” meant
that, where sworn affidavits were involved, it was not
enough to show that officers of the court had engaged in
fraud.® Rather, petitioners had to allege and prove that
these officers had committed perjury. Therefore, petitioners
needed to plead and prove that Finletter’s and Harmon’s
affidavits were “not subject to a literal, truthful interpreta-
tion” as “a necessary element” of their claim. A1l2.
Petitioners, however, could not make out this “neces-
sary element.” In the Court of Appeals’ view, if read literally
— and without regard for the circumstances in which they
were made or how the courts had understood them at the
time — the Air Force’s affidavits might be construed to claim
“state secrets” protection not just for the mission and secret
equipment aboard the ill-fated plane, but generally for
anything to do with the “workings” of the B-29. A13-14.
Because this was “an obviously reasonable truthful
interpretation of the statements made by the Air Force,”
petitioners were “unable to make out a claim for the perjury
which ... forms the basis for their fraud upon the court
claim,” and their complaint was properly dismissed. Al4.°
Reasons for Granting the Writ
The Court of Appeals has held that government officials
may intentionally defraud the federal courts by false and
misleading affidavits and the government may escape
answering for their misconduct, so long as the affiants are
8. The Court of Appeals agreed that Finletter and Harmon were acting
as “officers of the court” in Reynolds. A11.
9. In light of this conclusion, the Court of Appeals did not reach the
district court’s additional “independent research"-based ground for
dismissal.
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careful to avoid committing the crime of perjury. This
unprecedented holding conflicts with prior decisions of this
Court and other circuit courts governing independent
actions for fraud upon the court and establishes a standard
that promises only to bring shame on the federal judiciary. A
fraud directed squarely at the integrity of this Court’s
decision-making, as happened in the Reynolds case, should
be confronted, not excused. In the exercise of its supervisory
powers, this Court should issue a writ of certiorari to review
the Court of Appeals’ ruling.
I. The Court of Appeals’ Decision Conflicts with
Rule 60(b) and Prior Decisions of this Court and
Other Courts of Appeals.
The Court of Appeals’ decision in this case makes
pleading and proof of criminal perjury the sine qua non of an
independent action under Rule 60(b) of the Federal Rules of
Civil Procedure, at least where allegedly false and
misleading statements appear in sworn affidavits or
declarations:
To allege that false statements were made in these
documents is to allege perjury .... In such a case,
proof of perjury, though not sufficient to prove fraud
upon the court, becomes a necessary element which
must be met before going on to meet the additional
rigors of proving fraud upon the court.
Al2. On this basis, the Court of Appeals flipped the rules
that generally govern motions to dismiss; read the Finletter
and Harmon affidavits entirely outside the context in which
they were presented and previously understood; and held
that because those affidavits were arguably susceptible to a
“literal, truthful interpretation” petitioners could not prove
perjury and hence could not make out a claim for fraud upon
the court. A12-14.
The Court of Appeals cites no authority for its
holding that “proof of perjury” is a necessary element of a
fraud upon the court in this or any other context. None
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exists. The court’s decision conflicts with the plain language
of Rule 60(b) and with Hazel-Atlas Glass Co. v. Hartford-
Empire Co., 322 U.S. 238 (1944), and United States v.
Beggerly, 524 U.S. 38 (1998), this Court’s leading recent
discussions of fraud upon the court. It is also at odds with
the standards for Rule 60(b) independent actions estab-
lished by other federal appeals courts.
Rule 60(b), as amended in 1946, abolished almost all
common law avenues for post-judgment relief in the district
courts. Beggerly, 524 U.S. at 45. The amended rule,
however, specifically preserved “the power of the court to
entertain an independent action ... to set aside a judgment
for fraud upon the court.” Such an independent action
sounds in equity and, as Beggerly notes, appears “more
broadly available than the more narrow writs that the 1946
Amendment abolished.” Id.
The rule allows an action for fraud upon the court, not
perjury upon the court. Perjury and fraud are different.
Perjury is a crime. It requires proof of a willfully false
statement made under oath or expressly under penalty of
perjury, on a material matter which the defendant does not
believe to be true. 18 U.S.C. § 1621. These criminal
standards are exacting. Only an affirmative false statement
will sustain a charge of perjury; a literally true statement is
not perjury, even if it is intentionally evasive, misleading
and deceitful. Bronston v. United States, 409 U.S. 352, 360-
62 (1973). Further, a conviction lies only if the prosecution
proves that the defendant knew his testimony was false at
the time he gave it. United States v. Sweig, 441 F.2d 114, 117
(2d Cir.), cert. denied, 403 U.S. 932 (1971); La Placa uv.
United States, 354 F.2d 56, 59 (1st Cir. 1965).
Fraud, by contrast, is the intentional misstatement or
omission of a material fact made with knowledge of its
falsity or in reckless disregard for whether it is true or false.
E.g., SEC v. Infinity Group Co., 212 F.3d 180, 191-92 (3d Cir.
2000), cert. denied, 532 U.S. 905 (2001) (actionable securities
fraud consists of knowing or reckless misstatements or
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omissions); McLean v. Alexander, 599 F.2d 1190, 1197 & n.
12 (3d Cir. 1979) (same, collecting cases). Fraud is both a
criminal and civil law concept. Unlike perjury, fraud does
not depend upon an affirmative false statement; it may rest
upon an omission to state a material fact that the actor is
under a duty to disclose or that is necessary to make the
facts stated not misleading. Bronston, 409 U.S. at 358 n.4
(criminal fraud, unlike perjury, “goes ‘rather far in punish-
ing intentional creation of false impressions by a selection of
literally true representations, because the actor himself
generally selects and arranges the representations’”)
(citation omitted); Kline v. First Western Govu’t Sec., 24
F.3d 480, 491 (3d Cir. 1994); SEC v. Coffey, 493 F.2d 1304,
1314 (6th Cir. 1974). Fraud also does not require that the
actor know his statements and omissions to be false; the
actor may answer for fraud if he acts in reckless disregard
for whether his statements and omissions are true or not.
Infinity Group Co., 212 F.3d at 191-92; First Commodity
Corp. v. Commodity Futures Trading Comm., 676 F.2d 1, 6-7
(1st Cir. 1982).
Fraud thus is not perjury, and in preserving an
“independent action ... for fraud upon the court” Rule
60(b) is not preserving an action confined by the elements of
the crime of perjury. It is preserving a coader remedy for
deceit directed at the court itself.
This Court’s leading decision on “fraud upon the court,”
Hazel-Atlas, makes this clear.*° In 1941, h wel-Atlas
commenced an action to set aside a judgment entered
against it in 1932 on a claim of patent infringement. It
10. Hazel-Atlas is a prime example of a situation for which the
independent action was preserved under amended Rule 60(b). 28 U.S.C.
App., Fed R. Civ. P. 60, Advisory Committee’s Notes on 1946
Amendment, at p. 795 (“the rule expressly does not limit the power of
the court, when fraud has been perpetrated upon it, to give relief under
the saving clause. As an illustration of this situation, see Hazel-Atlas
Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944).”). See also
Beggerly, 524 U.S. at 46.
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alleged that Hartford-Empire had procured the judgment by
a fraud upon the court. Its evidence showed that in 1926 an
attorney for Hartford had written an article extolling
Hartford’s glass-making machine as a “remarkable ad-
vance” and arranged to have that article published in a
trade journal under the name of William Clarke, a leader in
the field. 322 U.S. at 240. Hartford and its attorney
submitted the article to the Patent Office in support of
Hartford’s patent application and later cited it to the Third
Circuit in a brief, directing the <ourt’s attention to “(t]he
article by Mr. William Clarke, fo: mer President of the Glass
Workers’ Union.” Id. at 240-41. The truth came fully to light
in the course of testimony in a later government prosecution
of Hartford for antitrust violations. Jd. at 243.
The Court of Appeals denied Hazel-Atlas relief, but this
Court reversed. The Court found that “[ejvery element of
the fraud here disclosed demands the exercise of the historic
power of equity to set aside fraudulently begotten judg:
ments.” Id. at 245." Hartford’s sin was not the crime of
perjury: Hartford was. not under oath when it misrepre-
sented the authorship of the article in its Patent Office
filings and appeal brief. Hartford’s sin was deception and
fraud — “a deliberately planned and carefully executed
scheme to defraud ... the Circuit Court of Appeals” — and
deception and fraud was enough to support an independent
action:
(Tjampering with the administration of justice in
the manner indisputably shown here involves far
more than an injury to a single litigant. It is a wrong
against the institutions set up to protect and
safeguard the public, institutions in which fraud
11. The Court observed that the federal courts’ equitable power to set
aside a final judgment obtained by fraud was well established and that,
notwithstanding the “deep-rooted policy” of finality, “where the occasion
has demanded, where enforcement of the judgment is ‘manifestly
unconscionable,’ they have wielded the power without hesitation.” 322
U.S. at 244-45 (citations and footnote omitted).
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cannot complacently be tolerated consistently with
the good order of society. ... The public welfare
demands that the agencies of public justice be not so
impotent that they must always be mute and
helpless victims of deception and fraud.
Id. at 246. It was, moreover, no answer to Hazel-Atlas’ claim
that the article was not basic to the 1932 judgment or that
the statements it contained were true. Hartford was in no
position to dispute that the article was material and
effective or to argue its accuracy having misrepresented its
true origin. Jd. at 246-47.
Similarly, in Beggerly, this Court reviewed amended
Rule 60(b) and the independent action it allows and
concluded that such an action “should be available only to
prevent a grave miscarriage of justice.” 524 U.S. at 47. As
support for this proposition the Court pointed not only to
Hazel-Atlas, but also to Pacific R. Co. v. Missouri Pacific R.
Co., 111 U.S. 505 (1884), and Marshall v. Holmes, 141 U.S.
589 (1891). The Pacific case involved an action to set aside a
foreclosure decree as the product of conspiracy among
certain parties fraudulently to expand the deed and decree
to embrace more property than had originally been
mortgaged. Marshall v. Holmes was an effort to vacate a
series of judgments that had been entered based on an
allegedly forged letter. Like Hazel-Atlas, both of these cases
were fraud cases; neither involved false statements under
oath.
These cases make it clear that the availability of the
independent action has never depended on proof of the
crime of perjury. Nor have any other Courts of Appeals held
that proof of perjury is a “necessary element” of such a
claim. The standard the Sixth Circuit has announced for
independent actions, for example, requires 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
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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. Petrousky, 10 F.3d 338, 348 (6th Cir. 1993).
This standard recognizes that fraud upon the court, unlike
perjury, need not be based on affirmative misstatements,
but may be based on nondisclosures, and need not be based
on proof of subjective knowledge of falsity, but may be
founded on a showing of willful blindness or reckless
disregard for the truth.
Other circuits have adopted more general standards.
See, e.g., Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st
Cir. 1989) (fraud upon the court is an “unconscionable
scheme calculated to interfere with the judicial system’s
ability impartially to adjudicate a matter by improperly
influencing the trier or unfairly hampering the presentation
of the opposing party’s claim or defense”); Gleason uv.
Jandrucko, 860 F.2d 556, 559 (2d Cir. 1989) (“fraud which
seriously affects the integrity of the normal process of
adjudication”); Rozier v. Ford Motor Co., 573 F.2d 1332,
1338 (5th Cir. 1978) (“only the most egregious conduct, such
as bribery of a judge or members of the jury, or the
fabrication of evidence by a party in which an attorney is
implicated”); Oxxford Clothes XX, Inc. v. Expeditors Int'l,
Inc., 127 F.3d 574, 578 (7th Cir. 1997) (“conduct that might
be thought to corrupt the judicial process itself, as where a
party bribes a judge or inserts bogus documents into the
record”); Greiner v. City of Champlin, 152 F.3d 787, 789 (8th
Cir. 1998) (“egregious misconduct directed to the court
itself”); Dixon v. Commissioner, No. 00-70858, 2003 U.S.
App. LEXIS 4831, at *11-12 (9th Cir. Mar. 18, 2003),
amending 316 F.3d 1041 (9th Cir. 2003) (“unconscionable
plan or scheme which is designed to improperly influence
the court in its decision”).
Not one of these formulations, however, demands proof
of perjury to establish fraud upon the court. Nor do any
other decided cases petitioners have been able to locate. In
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announcing and enforcing such a standard, the Court of
Appeals for the Third Circuit stands alone.
Il. The Court of Appeals’ “Perjury” Standard for
Independent Actions So Far Departs from the
Accepted and Usual Course of Judicial Proceed-
ings as to Call for the Exercise of this Court’s
Supervisory Powers.
Independent actions for fraud upon the court -
especially fraud upon this Court - are admittedly rare. But
they are important. The standards courts apply to
independent actions establish when, notwithstanding the
doctrine of finality, courts will act to defend the integrity of
their own processes to assure that justice is done. Where a
court, in the name of finality or expediency, announces a
standard that turns a blind eye to potential corruption of its
processes, it demeans itself and the public confidence that is
the court’s most vital resource.
This is what the Court of Appeals has done here. Its
decision begins with a vow to erect “not just a high hurdle to
climb but a steep cliff-face to scale” in pleading and proving
fraud upon the court. A3. It concludes with an extraordinary
holding that, at least where the fraud is perpetrated by
sworn statements, a showing that the statements were
intentionally misleading and deceptive is not enough. The
affidavits must be perjurious, and must be viewed with all of
the facts in the light most favorable to their proponents to
see if they might bear any literal, truthful interpretation.
This standard is result-driven in its reasoning and outcome
and, at bottom, shameful. A court should expect more of
government officials who solicit judicial action than that
they not be guilty of perjury.
Petitioners duly pleaded that Secretary Finletter and
Major General Harmon defrauded the federal courts,
including this Court, in claiming “state secrets” protection
for the accident report and witness statements at issue in
Reynolds. When these officials’ affidavits are read in the
20
context of the underlying litigation, it is plain that they
intended to lead the trial court and later the Court of
Appeals and this Court to believe that the documents in
question contained secret information regarding the plane’s
mission and the confidential equipment it carried. More-
over, the record establishes beyond question that this is
precisely how they were understood by the trial court, the
Court of Appeals, and this Court. And, it is because they were
so understood that the government secured in this Court a
broad privilege for “state secrets” that led to the reversal of
the widows’ judgments. Reynolds, 345 U.S. at 10:(“On the
record before the trial court it appeared that this accident
occurred to a military plane which had gone aloft to test
secret electronic equipment. Certainly there was a reason-
able danger that the accident investigation report would
contain references to the secret electronic equipment which
was the primary concern of the mission.”)
It turns out that the accident report and witness
statements contain no “state secrets” of the sort this Court
understood the Air Force to claim. The documents contain
nothing secret about the plane’s mission or its confidential
equipment.'* On this score, which is the score that matters,
the affiants perpetrated fraud. That their affidavits might be
12. The district court suggested, sua sponte, that references in the
accident report that the plane was involved in an “electronics project,” an
“authorized research and development mission” and “projects
requirling] aircraft capable of dropping bombs at altitudes of 20,000
feet and above” might reveal secret information. B11. This speculation,
even if it were appropriate on a motion to dismiss (which it is not), is
easily answered. Contemporancous news reports at the time publicly
reported these facts. Indeed, many of them appear in this Court’s opinion
in Reynolds. 345 U.S. at 2-3. On appeal, the government also pointed to a
reference in a witness statement to the fact that the plane had an auto-
pilot, hinting that this fact might be confidential. But this speculation,
even less appropriate on appeal, is also baseless. The Air Foree had
publicized that its bombers had auto-pilot technology in 1943. “Army
Tells Secret of its Robot Pilot: Electronically Controlled, It Is Said to Keep
Plane Rigidly On Course In Bombing,” New York Times, Sept. 21, 1943,
p. 25.
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read literally to claim a privilege for other information about
the B-29, as the Court of Appeals suggests, might help the
affiants avoid a perjury prosecution.’® But it does not render
their affidavits any less false, misleading and fraudulent, for
the affidavits were intended to deceive — and did deceive -
the courts on key facts that drove this Court’s decision. See
Hazel-Atlas, 322 U.S. at 247 (misrepresentation of key fact
of authorship upon which court relied constituted fraud
upon the court, even if other facts presented were truthful);
Lucia v. Prospect St. High income Portfolio, Inc. 36 F.3d 170,
175 (1st Cir. 1994) (literally accurate statements may, in
context and manner of presentation, be misleading and
fraudulent under securities laws); McMahan v. Wherehouse
Entertainment, Inc., 900 F.2d 576, 579 (2d Cir. 1990) (same);
SEC v. First American Bank & Trust Co., 481 F.2d 673, 678-
79 (8th Cir. 1973)."
The standard adopted below leads to the absurd result
that a fraud upon the court practiced by means of sworn
affidavits will be harder to make out than one founded on
unsworn statements. Let us imagine that Congress had not
required the Secretary of the Air Force to take an oath when
claiming “state secrets” protection and the Secretary and
13. Petitioners do not agree with the Court of Appeals’ reading of the
affidavits. Secretary Finletter, for instance, specifically represented that
the documents in question were “concerned with confidential missions
and equipment of the Air Force.” C31. This statement, which the Court of
Appeals does not even mention, has no “literal, truthful interpretation.”
It is false. Petitioners also do not agree that the affiants sought to claim
any privilege for the “workings” of the B-29. The affiants were offering to
produce witnesses to testify to precisely these matters. 345 U.S. at 11. Nor
is there any evidence that what the accident reports or witness
statements disclosed about the “workings” of the B-29 was, in fact, secret.
14. See also Stuart P. Green, Lying, Misleading, and Falsely Denying:
How Moral Concepts Inform the Law of Perjury, Fraud, and False
Statements, 53 HastinGs L.J. 157, 182 (November, 2001) (“Under modern
criminal law, literally true but misleading assertions, misleading
statements expressing mere beliefs and opinions, and various forms of
misleading nonverbal conduct can all provide a predicate to prosecution
for fraud and related offenses”).
22
Judge Advocate General had simply presented their claims
by letter to the trial court. The fraud upon the court would
be the same. Yet the crime of perjury would not be
implicated and hence there would be no quest for a “literal,
truthful interpretation” of the claims. The letters would be
evaluated under the standards for fraud and considered as a
whole and in context to ascertain whether, by commission or
omission, they were intentionally false, misleading or
deceptive.
Surely a government official who defrauds the court
under oath is no less contemptible than one who fabricates
evidence or offers unsworn factual misrepresentations.
After all, the oath-taker has made a solemn vow to be
truthful. There is no logic or justice in according him the
heightened protection of a “perjury” standard. The rule the
Court of Appeals adopted licenses the worst sort of fraud
upon the court: the clever, sworn series of “literally truthful
statements” that will beat off a perjury prosecution but
nonetheless deceive the court on facts fundamental to its
decision-making.
History reveals another example of fraud directed at the
integrity of this Court’s decision-making and accomplished
through “literally truthful statements” by high government
officials. It arose in a context no less charged than Reynolds.
It was discovered only decades after the event. But, it was
rightly condemned as a fraud upon this Court because these
“literally truthful statements” were intentionally dishonest
and deceptive.
In Korematsu v. United States, 323 U.S. 214 (1944), the
Court affirmed the conviction and internment of Fred
Korematsu, an American of Japanese ancestry. In 1983,
Korematsu filed a petition for a writ of coram nobis to vacate
this conviction based on government misconduct. That
misconduct included evidence that the government’s brief
in this Court i.ad been deliberately misleading in setting out
the facts upon which the government had relied in ordering
23
the evacuation and internment of Japanese-Americans as a
“military necessity.”
The Justice Department’s original draft brief before
this Court admitted that:
The Final Report of General DeWitt [supporting the
military necessity justification] ... is relied on in this
brief-for- statistics and other details concerning the
actual evacuation and the events that took place
subsequent thereto. The recital of the circumstances
justifying the evacuation as a matter of military
necessity, however, is in several respects, particularly
with reference to the use of illegal radio transmit-
ters and to shore-to-ship signaling by persons of
Japanese ancestry, in conflict with the information
in the possession of the Department of Justice. In
view of the contrariety of the reports on this matter
we do not asks [sic] the Court to take judicial notice
of the recital of those facts contained in the Report.
Korematsu v. United States, 584 F. Supp. 1406, 1417 (N.D.
Cal. 1984) (emphasis in original). However, by the time the
brief was filed with this Court, this passage had been revised
to:
The Final Report of General DeWitt ... is relied on in
this brief for statistics and other details concerning
the actual evacuation and the events that took place
subsequent thereto. We have specifically recited in
this brief the facts relating to the justification for the
evacuation, of which we ask the Court to take
judicial notice, and we rely upon the Final Report
only to the extent that it relates to such facts.
Id. at 1418 (emphasis in original) (citing Brief for the United
States, Korematsu v. United States, October Term, 1944, No.
22, at 11). The final brief made no mention of the
contradictory reports, nor of the “willful historical in-
accuracies and intentional falsehoods” that Justice Depart-
ment officials believed the DeWitt Report contained. 585 F.
24
Supp. at 1418. The United States’ brief was literally true,
but deliberately misleading.
As the district court recognized, the government’s
~ deceitful omissions were critical. Jd. The government had
relied heavily in the district court on the entire range of
factual findings in the DeWitt Report to justify the
evacuation. And, this Court assumed the integrity of the
executive branch’s factual determinations in that report in
adopting a deferential standard of review in Hirabayashi v.
United States, 320 U.S. 81, 95 (1943), and in applying that
deferential standard to sustain Korematsu’s conviction a
year later. See 323 U.S. at 218-24. “Whether a fuller, more
accurate record would have prompted a different decision
cannot be determined. Nor need it be determined.” 584 F.
Supp. at 1419 (emphasis added). The record had been falsely
depicted and relevant evidence had been knowingly with-
held from the Court. This was sufficient to issue the writ
and vacate Korematsu’s conviction. /d.
Korematsu and, petitioners believe, this case show that
where the stakes warrant and the opportunity exists, fraud
upon the court will occur. lf the Court of Appeals’ decision
should stand - if “perjury” standards can defeat claims of
fraud - officials intent on fraud will find ways to practice
their deceit within the bounds of that decision and equity
will turn its back on the consequences. That will be a sad
day for the victims and for our courts. The Court should
issue a writ of certiorari to set the standards right.
Ili. This Court Should Provide Petitioners a Re-
medy for the Government’s Fraud.
Petitioners sought a writ of error coram nobis from this
Court in March, 2003. The government opposed the petition,
pointing to the availability of an independent action under
Rule 60(b). This Court declined to accept the petition for
filing, remitting the petitioners to their district court
remedy. .
25
The fraud in this case succeeded only in this Court.
Petitioners therefore believed this Court was the appro-
priate forum in which to seek redress in the first instance.
Subsequent proceedings have confirmed that petitioners
were correct. The lower courts have gone to extraordinary
lengths to dismiss this case. The district court conducted its
own “independent” factual research, made demonstrably
erroneous findings to which petitioners had no opportunity
to respond, then dismissed the case with prejudice on a
theory the government itself had never advanced. The Court
of Appeals vowed to put a “cliff-face” before petitioners, and
it did.
The lower courts have no sufficient stake in this case.
This Court does. It is this Court’s processes that were
subverted. The Court should issue a writ of certiorari to
assure that petitioners have a remedy for the fraud upon
this Court the government perpetrated.
Conclusion
This is a case about a fraud upon the Court. Some may
find in the petitioners’ complaint reason to doubt the
wisdom of this Court’s holding in United States v. Reynolds.
Others will see this “back-story” as merely a sad footnote
that takes nothing away from the logic of the Court’s 1953
decision. The merits of the Reynolds holding - and its
impact on present day controversies - pose interesting and
no doubt important questions. But petitioners do not raise
any of them. Whether the legal principles established in
Reynolds are right or wrong is for another day and another
case.
For petitioners, the only issue this Court must today
address is whether it will tolerate a fraud - a fraud that
struck at the integrity of the Court’s decision-making
process and that cheated three struggling widows and their
children out of that which was rightly theirs. Petitioners
pray that it will not.
26
For all of these reasons the petition for a writ of
certiorari should be granted.
Respectfully submitted,
Wilson M. Brown, III
Counsel of Record
Lori J. Rapuano
DRINKER BIDDLE & REATH LLP
Attorneys for Petitioners
APPENDIX
TABLE OF CONTENTS
Appendix Page
Appendix A:
Opinion and Judgment of the United States Court of
Appeals for the Third Circuit, filed September 22,
Appendix B:
Memorandum and Order of the United States District
Court for the Eastern District of Pennsylvania,
filed September 10, 2004
Appendix C:
Independent Action for Relief from Judgment to
Remedy Fraud Upon the Court (Complaint), filed
October 1, 2003
Al
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4270
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
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No. 03-CV-5500)
District Court Judge: Honorable Legrome D. Davis
Argued: July 15, 2005
Before: ALITO, VAN ANTWERPEN and ALDISERT,
Circuit Judges
(Filed: September 22, 2005)
A2
Wilson M. Brown, III (Argued)
Lori J. Rapuano
Angie Halim
Drinker Biddle & Reath, LLP
One Logan Square
18th and Cherry Streets
Philadelphia, PA 19103
Attorneys 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
950 Pennsylvania Avenue, NW, Room 7242
Washington, D.C. 20530-0001
Attorneys for Appellee
A3
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. The United States Court of Appeals for the Sixth Circuit has set
forth five elements of fraud upon the court which consist 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).
Although other United States Courts of Appeals have not articulated
express elements of fraud upon the court as the Sixth Circuit did, the
doctrine has been characterized “as a scheme to interfere with the judicial
A4
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
machinery performing the task of impartial adjudication, as by
preventing the opposing party from fairly presenting his case or
defense.” In re Coordinated Pretrial Proceedings in Antibiotic Antitrust
Actions, 538 F.2d 180, 195 (8th Cir. 1976) (citations omitted); see also
Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978) (holding
“only the most egregious misconduct, such as bribery of a judge or
members of a jury, or the fabrication of evidence by a party in which an
attorney is implicated, will constitute a fraud on the court”). Additionally,
fraud upon the court differs from fraud on an adverse party in that it “is
limited to fraud which seriously affects the integrity of the nermal process
of adjudication.” Gleason v. Jandrucko, 860 F.2d 556, 559 (2d Cir. 1998).
Other United States Courts of Appeals expressly require that fraud
upon the court must involve an officer of the court. See Geo. P. Reintijes
Co. v. Riley Stoker Corp., 71 F.3d 44, 48 (1st Cir. 1995); Demjanjuk, 10
F.3d at 348. The Ninth Circuit noted that “one species of fraud upon the
court occurs when an ‘officer of the court’ perpetrates fraud affecting the
ability of the court or jury to impartially judge a case.” Pumphrey v.
Thompson Too! Co., 62 F.3d 1128, 1130 (9th Cir. 1995); see also Weese v.
Schukman, 98 F.3d 542, 553 (10th Cir. 1996) (noting that “fraud on 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”) (citation omitted); Kerwit Med. Prods., Inc. v. N. &
H. Instruments, Inc., 616 F.2d 833, 837 (11th Cir. 1980) (same).
A5
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(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. 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. 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,
A6
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
A7
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 (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 (2003).
Then, on October 1, 2003, Appellants filed this action in the
District Court for the Eastern District of Pennsylvania,
A8
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 originaily 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.
IIT.
The District Court had jurisdiction supplemental to its
exercise of ‘urisdiction 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 apply an abuse of
discretion standard of review to our review of the District
Court’s grant of its Rule 12(b)(6) motion and provides
several arguments in favor of departure from the normally
applicable standard.
Initially, we must be clear that we are not here
reviewing a Rule 60(b) motion. The provision of Rule 60(b)
commonly known as the “savings clause” states: “This rule
does not limit the power of a court to entertain an
independent action to relieve a party from a judgment,
order, or proceeding, or to grant relief to a defendant not
actually personally notified as provided in Title 28, U.S.C., §
1655, or to set aside a judgment for fraud upon the court.”
A9
Rule 60(b), Federal Rules of Civil Procedure (emphasis
added). It follows that an independent action alleging fraud
upon the court is completely distinct from a motion under
Rule 60(b). See Geo. P. Reintjes Co., 71 F.3d at 48.
The Government contends that because Appellants
seek an equitable remedy ancillary to the prior suit of
relief from a prior judgment of the District Court we should
treat this action as if it were a review of denial of a Rule
60(b) motion and therefore review for abuse of discretion.
We will not treat as a Rule 60(b) motion something that is
explicitly preserved without being included by the text of
Rule 60(b).
We are similarly unpersuaded by the Government’s
argument that because Rule 60(b) allows relief more broad
than an independent action for fraud upon the court, and
determinations based on Rule 60(b) are reviewed only for
abuse of discretion, see Pridgen v. Shannon, 380 F.3d 721,
725 (3d Cir. 2004), an independent action for fraud upon the
court should be reviewed at least as deferentially.
Fundamentally, this argument confuses standard of review
with burden of proof. We are quite capable of taking full
account of the narrow criteria for relief present in an
independent action for fraud upon the court without
altering the Federal Rules of Civil Procedure. Under the
normal de novo, review that applies to a district court’s
grant of a Rule 12(b)(6) motion to dismiss for failure to state
a claim, we can determine whether the Appellants have
alleged facts which, if true, provide a basis for relief under
the very demanding legal standard for fraud upon the court.
Finally, the Government cites United States v. Buck,
281 F.3d 1336, 1342-1343 (10th Cir. 2002), for the
proposition that independent actions to reopen a judgment
based on fraud upon the court are reviewed for abuse of
discretion. We note initially that Buck is not binding on this
Court. Even if it were, it does not support the Government’s
proposition because it reviewed a case in a much different
procedural posture than the one at bar. In Buck, the court
Al0
converted a motion brought under Rule 60(b)(6) alleging
fraud upon the court into an independent action and then
reviewed for abuse of discretion. Instead, we are faced with
the simple review of a district court’s grant of a Rule
12(b)(6) motion to dismiss for failure to state a claim to
which de novo review clearly applies. See In re Adams Golf,
Inc. Sec. Litig., 381 F.3d 267, 273 (3d Cir. 2004).
V.
As noted above, we will employ a demanding standard
for independent actions alleging fraud upon the court
requiring: (1) an intentional fraud; (2) by an officer of the
court; (3) which is directed at the court itself; and (4) that in
fact deceives the court. We agree with the Court of Appeals
of the Eighth Circuit that the fraud on the court must
constitute “egregious misconduct... such as bribery of a
judge or jury or fabrication of evidence by counsel.” In re
Coordinated Pretrial Proceedings in Antibiotic Antitrust
Actions, 538 F.2d at 195 (citations omitted). We must decide
whether the United States Air Force’s assertion of military
secrets privilege over the accident report describing the
cause of the B-29’s crash at Waycross, Georgia, was fraud
upon the court. In order to do this we look carefully at two
documents central to the original litigation: the formal
affidavit and claim of privilege filed by then-Secretary of the
Air Force, Thomas K. Finletter and an affidavit of
then-Judge Advocate General of the Air Force, Reginald
Harmon.
Before engaging in a detailed inquiry into the substance
contained in these docun.ents it is important to note the
form and authorship of the documents. Both are formal
documents making assertions to the court under oath
authored by lawyers who were participating in the
litigation though not directly representing the United
States.
Authorship is important because, as noted above, we
agree with the courts analyzing fraud upon the court which
All
have required the fraud to be perpetrated by an “officer of
the court.” See Geo. P. Reintjes, 71 F.3d at 49; Demjanjuk,
10 F.3d at 348; Lockwood v. Bowles, 46 F.R.D. 625, 622 (D.C.
Cir. 1969). These cases have noted, and we agree, that
perjury by a witness is not enough to constitute fraud upon
the court. See e.g., Geo. P. Reintjes Co., 71 F.3d at 49 (“The
possibility of perjury, even concerted, is a common hazard of
the adversary process with which litigants are equipped to
deal through discovery and cross-examination, and, where
warranted, motion for relief from judgment to the presiding
court. Were mere perjury sufficient to override the
considerable value of finality after the statutory time
period for motions on account of fraud has expired, it
would upend [Rule 60’s] careful balance.”) (citations
omitted).
The Government seeks to define officer of the court
narrowly to exclude Secretary Finletter and Judge Advocate
Harmon because, though lawyers, they did not represent the
United States in the litigation sought to be reopened.
Although it is true that Finletter and Harmon did not
represent the United States in the litigation, they did
represent the United States Air Force’s claim of privilege
over a document central to that litigation. They were
attorneys making a formal claim of privilege on behalf of
the Government. We agree with the District Court’s
conclusion that the Supreme Court depended upon
Finletter and Harmon’s “experience, expertise and
truthfulness” in its decision to reverse and remand.
Herring v. United States, No. Civ. A.03-CV-5500-LDD,
2004 WL 2040272, *6 n.3 (E.D. Pa. Sept. 10, 2004). Given
these unique facts, we find it inappropriate to decide the
case on the basis that Secretary Finletter and Judge
Advocate General Harmon were not officers of the court.
2. In this view that we take, we extend to Appellants the full reach of
case law that prescribed required elements of “fraud upon the court.”
Were we to proceed otherwise, the following discussion would not have
been necessary to affirm the judgment of the District Court.
Al2
The stature of the documents in which the allegedly
fraudulent representations were made is also important.
The representations were made in an affidavit of Judge
Advocate General Harmon and an affidavit and formal claim
of privilege of Secretary Finletter both made under oath. To
allege that false statements were made in these documents
is to allege perjury; a particularly serious type of perjury
because of the high degree of faith the Court placed in the
truth of Finletter and Harmon’s representations. In a
perjury case, the plaintiff must prove that the allegedly
perjurious statement is not subject to a literal, truthful
interpretation. United States v. Tonelli, 577 F.2d 194, 198
(3d Cir. 1978). As explained above, proof of perjury is not
enough to establish fraud upon the court. See e.g., Geo. P.
Reintjes Co., 71 F.3d at 49. In this case, however, an
accusation of perjury forms the basis of the fraud upon the
court claim. In such a case, proof of perjury, though not
sufficient to prove fraud upon the court, becomes a
necessary element which must be met before going on to
meet the additional rigors of proving fraud upon the court.
Moving to our examination of the substence of the two
documents relied on by the Appellants, it is apparent that
we must determine whether they are susceptible to a
truthful interpretation. More specifically, can they be
reasonably read to include within their scope an assertion
of privilege over the workings of the B-29? If they can, the
Appellants’ assertion that the Air Force claim of military
secrets privilege misrepresented the nature of the
information contained in the accident report over which
the privilege was asserted falls apart.®
3. Even if we concluded that the Air Force’s claim of privilege could not
be read to include concern about revealing the workings of the B-29, we
would be obligated to consider whether certain information contained in
the accident report actually revealed sensitive information about the
mission and the electronic equipment involved. ‘The accident report
revealed, for example, that the project was being carried out by “the
3150th Electronics Squadron,” that the mission required an “aircraft
capable of dropping bombs” and that the mission required an airplane
Al3
We conclude that the statements of Finletter and
Harmon can be reasonably read to assert privilege over
technical information about the B-29. The formal claim of
privilege made by Secretary Finletter states:
The defendant further objects to the production of
this report, together with the statements of
witnesses, for the reason that the aircraft in
question, together with the personnel on board,
were engaged in a confidential mission of the Air
Force. The airplane likewise carried confidential
equipment on board and any disclosure of its
mission or information concerning its operation or
performance would be _ prejudicial to _ this
department and would not be in the public interest.
(Claim of Privilege by the Secretary of the Air Force
(emphasis added).)
Appellants and the Government disagree on whether
the pronoun “its” refers only to the electronic equipment on
board or the B-29 airplane itself. While both readings are
capable of “operating at altitudes of 20,000 feet and above.” (Report of
Special Investigation of Aircraft Accident Involving TB-29-100BS No.
45-21866.) Our conclusion that information about the workings of the
B-29 was included within the claim of privilege makes it unnecessary to
engage in this analysis. If such an analysis were necessary, it would
require a certain amount of deference to the Government’s position
because of the near impossibility of determining with any level of
certainty what seemingly insignificant pieces of information would have
been of keen interest to a Soviet spy fifty years ago. See e.g, Knight v.
C.LA., 872 F.2d 660, 663 (5th Cir. 1989) (“[E]ven the most apparently
innocuous [information] can yield valuable intelligence.”); C.I.A. v. Sims,
471 U.S. 159, 178 (1985) (“Foreign intelligence services have both the
capacity to gather and analyze any information that is in the public
domain and the substantial expertise in deducing the identities of
intelligence sources from seemingly unimportant details. In this context,
the very nature of the intelligence apparatus of any country is to try to
find out the concerns of others; bits and pieces of data ‘may aid in piecing
together bits of other information even when the individual piece is not of
obvious importance in itself.’” (citation omitted).
Al4
conceivable, the Government’s is more logical. It is more
natural to refer to an airplane’s mission than to refer to the
confidential equipment’s mission. At the very least, the
statement is readily susceptible to the reading preferred by
the Government.
Appellants’ contention about the meaning of “its” in
the claim of privilege is also completely undercut by the
statement in their original Supreme Court brief that “the
Secretary for Air [sic] in his claim of privilege states (R. 22)
that ‘any disclosure of its (the airplane's) mission or
information concerning its operation or performance would
be prejudicial’” and that it was “obvious that the Air Force
considers that all details concerning the operation of the
airplane are ‘classified.’” (Brief for Respondents submitted
to the Supreme Court at 35 n.4 (emphasis added)
(parenthetical alteration in the original).)
Nothing in Judge Advocate General Harmon’s affidavit
contradicts the Government’s contention that the claim of
privilege referred to the B-29 itself rather than solely the
secret mission and equipment.
* * * * *
Because there is an obviously reasonable truthful
interpretation of the statements made by the Air Force,
Appellants are unable to make out a claim for the perjury
which, as explained above, forms the basis for their fraud
upon the court claim. We, therefore, conclude that
Appellants failed to state a claim upon which relief can be
granted.
We will affirm the judgment of the District Court.
Ald
UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT
No. 04-4270
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
Vv.
UNITED STATES OF AMERICA
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 03-CV-5500)
District Judge: The Honorable Legrome D. Davis
Argued: July 15, 2005
Before: ALITO, VAN ANTWERPEN and ALDISERT,
Circuit Judges
JUDGMENT
This cause came to be considered on the record from the
United States District Court for the Eastern District of
Pennsylvania and was argued on July 15, 2005.
Al6
On consideration whereof, it is now hereby ORDERED
and ADJUDGED by this Court that the judgment of the
District Court entered September 10, 2004, be and the same
is hereby affirmed. All of the above in accordance with the
opinion of this Court.
Costs taxed against Appellants.
ATTEST:
/s/ Marcia M. Waldron
Marcia M. Waldron, Clerk
Dated: September 22, 2005
Bl
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PATRICIA J. HERRING, et al., : CIVIL ACTION
Plaintiffs,
v. : NO. 03-CV-5500-LDD
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM AND ORDER
LEGROME D. DAVIS, J. SEPTEMBER 10th, 2004
I. INTRODUCTION
Presently before this Court is the Motion to Dismiss
filed by the United States of America (“Government”) on
January 23, 2004 (Doc. No. 6, “D’s Mot.”), the
Memorandum in Opposition to Defendant’s Motion to
Dismiss filed by Plaintiffs on February 24, 2004 (Doc. No.
9, “Pl’s Opp.”), and the Reply Brief in Support of
Defendant’s Motion to Dismiss filed by the Government on
March 19, 2004 (Doc. No. 10, “Reply”). This Court heard
argument on this matter on May 11, 2004. (Doc. No. 15,
“lrg. Tr.”).
II. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
This case revisits three consolidated actions originally
brought in 1949 under the Federal Tort Claims Act by
widows of civilians killed in a crash of an Air Force plane,
that culminated in the Supreme Court decision United
States v. Reynolds, 345 U.S. 1 (1953). In Reynolds, the Court
recognized the military secrets privilege that, upon
adequate showing, allows the government to withhold
evidence the disclosure of which would compromise
national security.
Reynolds, 345 U.S. at 11. This Court adopts, in pertinent
part, the factual background set out in Reynolds:
B2
“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, [the Supreme Court] 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
observes 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
B3
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.”
Reynolds, 345 U.S. at 2-5. The Supreme Court formally
recognized a military secrets privilege and held that:
B4
The privilege belongs to the Government and must
be asserted by it; it can neither be claimed nor
waived by a private party. It is not to be lightly
invoked. There must be a formal claim of privilege,
lodged by the head of the department which has
control over the matter, after actual personal
consideration by that officer. The court itself
must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so
without forcing a disclosure of the very thing the
privilege is designed to protect.
Id. at 7-8 (citations omitted). The Court reversed the
decision of the Court of Appeals and remanded the case to
the District Court for proceedings consistent with its
opinion. On remand from the Reynolds decision, the
parties conducted limited discovery, settled their claims
for approximately seventy-five percent of the original
judgment. The District Court dismissed the case with
prejudice in August of 1953.
In 2000, the daughter of une of the deceased civil
engineers obtained the newly declassified accident report
from an internet service provider. Pl’s Opp. at 9. Because
the report lacked a detailed description of the “secret
mission,” “newly developing electronic devices,” or “secret
electronic equipment,” Plaintiffs sought leave to file a
petition for a writ of error coram nobis before the Supreme
Court; the Court denied the motion in a one line order on
June 23, 2003. In_re Herring, 539 U.S. 940 (2003). On
October 1, 2003, pursuant to Rule 60(b) of the Federal Rules
of Civil Procedure, the parties and their living heirs filed
this action seeking to set aside the settlement agreement
reached fifty years earlier on the grounds that the
settlement was procured by the Air Force’s claim of
privilege, through which it committed a fraud on the
Court actionable under Rule 60(b)’s savings clause. Fed. R.
Civ. P. 60(b)(6). Plaintiffs request the difference between
the amount for which they settled the claims and the default
B5
judgment originally entered by the District Judge. Compl. at
7 45. On January 23, 2004, the Government filed a Motion to
Dismiss for failure to state a claim upon which relief can be
granted pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. This Court heard argument on the Motion
on May 11, 2004.
fll. STANDARD OF REVIEW
A. Legal Standard for Motion to Dismiss Under
Rule 12(b)(6)
Dismissal for failure to state a claim is appropriate
when it clearly appears that plaintiff can prove no set of
facts in support of the claim which would entitle him to
relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Robb
v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984).
Such a motion tests the legal sufficiency of a claim while
accepting the veracity of the claimant’s allegations. See
Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.
1990); Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987);
Winterberg v. CNA Ins. Co., 868 F. Supp. 713, 718 (ED. Pa.
1994), affd, 72 F.3d 318 (3d Cir. 1995). A court may consider
only the pleadings, exhibits thereto, any document
appended to and referenced in the complaint on which
plaintiffs claim is predicated, and matters of public record.
See Fed. R. Civ. P. 10(c); In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1426 (3d Cir. 1997); In re Westinghouse Sec.
Litig., 90 F.3d 696, 707 (3d Cir. 1996). A court, however,
need not credit conclusory allegations or legal conclusions in
deciding a motion to dismiss. See Gen. Motors Corp. v. New
A.C. Chevrolet. Inc., 263 F.3d 296, 333 (3d Cir. 2001); Morse
v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997);
L.S.T., Inc. v. Crow, 49 F.3d 679, 683-84 (11th Cir. 1995). A
claim may be dismissed when the facts alleged and the
reasonable inferences therefrom are legally insufficient to
support the relief sought. See Pennsylvania ex rel.
Zimmerman v. PepsiCo., Inc., 836 F.2d 173, 179 (3d Cir.
1988).
B6
B. Legal Standard for “Fraud Upon the Court”
Under Rule 60(b)
Rule 60(b) reads as follows:
(b) 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 couid
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 prospective application; or (6) any other
reason justifying relief from the operation of the
judgment. 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. A motion under
this subdivision (b) does not affect the finality of a
judgment or suspend its operation. This rule does
not limit the power of a court to entertain an
independent action to relieve a party from a
judgment, order, or proceeding, or to grant relief
to a defendant not actually personally notified as
provided in Title 28 U.S.C., § 1655, or to set aside a
judgment for fraud upon the court. Writs of coram
nobis, coram vobis, audita querela, and bills of
review and bills in the nature of a bill of review, are
abolished, and the procedure for obtaining any
B7
relief from a judgment shall be by motion as
prescribed in these rules or by an independent
action.
Fed. R. Civ. P. 60(b). Though the Third Circuit has not
expressly addressed the standard for fraud upon the court,
other courts have characterized it as an unconscionable plan
or scheme to improperly influence the court or interfere
with the judicial machinery performing a task of impartial
adjudication, as by preventing an opposing party from fairly
presenting his case or defense. See e.g., In re Coordinated
Pretrial Proceedings in Antibiotic Antitrust Actions, 538
F.2d 180 (8th Cir. 1976); Hrg. Tr. at 27, 37. A finding of
fraud upon the court is justified only by the most egregious
misconduct directed to the court itself such as bribery of a
judge or jury or fabrication of evidence by counsel. In re
Coordinated Pretrial Proceedings in Antibiotic Antitrust
Actions, 538 F.2d 180; see also Gleason v. Jandrucko, 860
F.2d 556, 558-59 (2d Cir.1988) (“[T]he type of fraud
necessary to sustain an independent action attacking the
finality of a judgment is narrower in scope than that which
is sufficient for relief by timely motion’ under Rule 60(b)(3)
for fraud on an adverse party ... ‘{[F]raud upon the court as
distinguished from fraud on an adverse party is limited to
fraud which seriously affects the integrity of the normal
process of adjudication.’). It must be supported by clear,
unequivocal, and convincing evidence. In re Coordinated
Pretrial Proceedings in Antibiotic Antitrust Actions, 538
F.2d 180; see also England v. Doyle, 281 F.2d 304 (9th Cir.
1960) (holding that a motion to set aside the action of the
court on this ground is addressed to the sound discretion of
the trial court and the burden is on the moving party to
establish fraud by clear and convincing evidence).
Though Rule 60(b) generally imposes a one year
limitation, a court’s power to set aside a prior judgment,
fraud upon the court, as alleged here, is not subject to that
limitation. King v. First Am. Investigations, Inc., 287 F.3d
91, 95 (2d Cir. 2002) (citing Hadges v. Yonkers Racing Corp.,
B8
48 F.3d 1320, 1325 (2d Cir.1995) (“Fraud upon the court
should embrace ‘only that species of fraud which does or
attempts to, defile 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.’”)). In order to sustain an independent action
pursuant to Rule 60(b), however, a claimant must
adequately allege a grave miscarriage of justice. United
States v. Beggerly, 524 U.S. 38, 46-47 (1998) (“Independent
actions must, if Rule 60(b) is to be interpreted as a coherent
whole, be reserved for those cases of ‘injustices which, in
certain instances, are deemed sufficiently gross to demand a
departure’ from rigid adherence to the doctrine of res
judicata.’’) (citing Hazel-Atlas Glass Co. v. Hartford-Empire
Co., 322 U.S. 238, 244 (1944)). Under Rule 60(b), the
propriety of granting relief from judgment is committed to
the district court’s broad discretion. Fed. R. Civ. P. 60(b);
see e.g., Schultz v. Commerce First Financial, 24 F.3d 1023
(8th Cir. 1994) (noting that while the determination is
within the court’s discretion, Rule 60(b) does “not give
courts unlimited authority to fashion relief as they deem
appropriate” (citing Doe v. Zimmerman, 869 F.2d 1126,
1128 (8th Cir.1989)), but that the rule “provides for
extraordinary relief which may be granted only upon an
adequate showing of exceptional circumstances” (citing
United States v. Young, 806 F.2d 805, 806 (8th Cir. 1986)
(per curiam), cert. denied, 484 U.S. 836 (1987))).
IV. DISCUSSION
A. Plaintiffs Have Not Adequately Pled Fraud on
the Court Under Rule 60(b)(3)’s Savings
Clause
Complaint, Exhibits, and Declassified
Documents, Do Not Suggest Air Force
Intent to Deliberately Misrepresent
Truth or Commit Fraud
hs
«
B9
Despite Plaintiffs’ allegations, a review of the complaint
and the exhibits attached thereto, including the declassified
documents, does not suggest that the Air Force intended to
deliberately misrepresent the truth or commit a fraud on
the court. Because a determination of what information
should be kept confidential in the interest of national
security involves predictive judgments about the potential
future harm of premature disclosure, informed expertise
and even intuition “must often control in the absence of
hard evidence.” Kaluse v. Blake, 428 F. Supp. 37, 38 (D.D.C.
1976). In all likelihood, fifty years ago the government had a
more accurate understanding “on the prospect of danger to
{national security] from the disclosure of secret or sensitive
information” than lay persons could appreciate or than
hindsight now allows. Halperin v. NSC, 452 F. Supp. 47
(D.D.C. 1978), aff'd 612 F.2d 586 (D.C. Cir. 1980). Plaintiffs
take aim at the factual foundation of the military secret
privilege, suggesting that concealing this accident
investigation report constituted an unconscionable plan or
scheme to improperly influence the Court such that the
priv..cge resulted from an undeserving test case. But,
because “each individual piece of intelligence information,
like a piece of [a] jigsaw puzzle, may aid in piecing together
bits of information even when the individual piece is not of
obvious importance itself,” Fitzgibbons v. CIA, 911 F.2d
755, 763 (D.C. Cir. 1990), it is proper to defer on some level!
to governmental claims of privilege even for “information
that standing alone may seem harmless, but that together
with other information poses a reasonable danger of
divulging too much to a ‘sophisticated intelligence
analyst.’ In re United States, 872 F.2d 472, 475 (D.C. Cir.
1989) (quoting Halkin v. Helms, 598 F.2d 1, 9 (DC. Cir.
1978). “Even the most apparently innocuous [information]
can yield valuable intelligence.” Knight v. CLA, 872 F.2d
660, 663 (5th Cir. 1989).
Plaintiffs argue that nothing in the accident
investigation report constitutes a military secret such that
B10
the claim of privilege was proper.’ Instead, Plaintiffs
surmise that the Air Force engaged in conscious-shocking
fraud on the courts by misrepresenting the contents of the
accident investigation report with the intent to deliberately
trade on the trust with which the Court imbued the military
in order to obtain a broad-sweeping military secrets
privilege at the dawn of the Cold War and insulate all
manner of documents from judicial and public scrutiny.
Hrg. Tr. at 26. In response, the Government submits that
the apparent dearth of sensitive information in the accident
investigation report and witness statements is not probative
of whether its disclosure may have been “of great moment”
to sophisticated intelligence analyst(s] having a “broad view
of the scene” in 1950, CIA v. Sims, 471 U.S.159, 178 (1985),
or whether the Air Force, operating on the basis of
information and expertise that Plaintiffs and the Court
lack, could have correctly reached that conclusion. D’s Mot.
at 20.
Specifically, the affidavit and claim of privilege by
Secretary of the Air Force, Thomas K. Finletter, states that:
the aircraft in question, together with the
personnel on board, were engaged in a
confidential mission of the Air Force. The
airplane likewise carried confidential equipment
on board and any disclosure of its mission or
information concerning its operation or
performance would be prejudicial to this
Department and would not be in the public
interest.
Compl. at 7 14, Ex. C. From this, Plaintiffs deduce that only
the mission and electronic equipment were confidential, but
a broader reading of the affidavit suggests that beyond the
1. Plaintiffs, convinced that nothing in the accident investigation
report would compromise the public interest, conjectured that this Court
would be hard-pressed to find national security secrets lurking
somewhere in the accident investigation report. Hrg. Tr. at 29.
Bll
mission itself, disclosure of technical details of the B-29
bomber, .its operation, or performance would also
compromise national security. The Secretary’s claim of
privilege also indicates that the purpose of such accident
investigation reports is to ensure continued efforts at flying
safety.“ Similarly, the affidavit taken by Judge General of
the Air Force, Major General Reginald C. Harmon,
characterizes the confidential nature of the accident
investigation report more expansively. Major General
Harmon’s affidavit indicates that furnishing the requested
documents would seriously hamper “national security,
flying safety and the development of highly technical and
secret military equipment.” Compl. at 7 15, Ex. D.
Review of the accident investigation report indicates
that though it offers no thorough exploration of the secret
mission, it does describe the mission in question as an
“electronics project” and an “authorized research and
development mission.” Compl. at Ex. I. Specifically, the
report states that “(t]he projects which the 3150th
Electronics Squadron were conducting require aircraft
capable of dropping bombs and operating at altitudes of
20,000 feet and above.” Id. It also provides a detailed
account of the technical requirements imposed by the Air
2. “The report of investigation, together with all the statements of the
witnesses, was prepared under regulations which are designed to insure
the disclosure of all pertinent factors which may have caused, or which
may have a bearing on, the accident in order that every possible safeguard
may be developed so that precautions may be taken for the prevention of
future accidents and for the purpose of promoting the highest degree of
flying safety. These statements are obtained in confidence, and these
reports are prepared for intra-departmental use only, with the view of
correcting deficiencies found to have existed and with the view of taking
necessary corrective measures or additional precautions based on the
opinions and conclusions of the Board of Officers convened to investigate
the accident. The disclosure of statements made by witnesses and
air-crewmen before Accident Investigation Boards would have a deterrent
effect upon the much desired objective of encouraging uninhibited
statements in future inquiry proceedings instituted primarily in the
interest of flying safety.” Comp] at Ex. C
B12
Force to remedy engine and mechanical difficulties. Jd. The
accident investigation report makes specific reference to Air
Force technical orders geared to improving the functionality
of the B-29 bombers, implementing “changes to the exhaust
manifold assemblies for the purpose of eliminating a definite
fire hazard” including installation of heat defiector shields
“to prevent excessive heat from entering the accessory
section,” and making the aircraft safe for flight. Compl. at
7 33, Ex. I and J. These affidavits, reports, and orders
implicate far more than the particulars of the secret
equipment aboard that flight; they also suggest the need
to preserve engineering technology, mechanical and
operational data, and equipment usage for the safety and
development of the Air Force fleet. Details of flight
mechanics, B-29 glitches, and technical remedies in the
hands of the wrong party could surely compromise national
security. For all these reasons, that the accident
investigation report itself does not make plain the
substance of those intelligence concerns does not suffice to
support a conclusion that disclosure at that time would not
have harmed national security or that in so asserting the
privilege, the Air Force sought to defraud the Courts.”
3. The Government argues that the Secretary of the Air Force and the
Judge Advocate General of the Air Force were not officers of the Court,
and did not owe integrity and impartiality to the Court as fiduciaries, but
rather were mere affiants. D’s Mot. at 5-6; Hrg. Tr. at 11. In response,
Plaintiffs contend that the affiants were high-ranking officials, not
merely witnesses, who owed an obligation to the Court to speak with
veracity. Pl’s Opp at 17; Hrg. Tr. at 18, 19. Adopting the Government's
position would directly contravene the role contemplated in United States
v. Reynolds for military officers; the military secrets privilege standard
demands that only the head of the department with control over the
matter lodge the formal claim of privilege following her/his personal
consideration. Reynolds, 345 U.S. at 8. The Court depends on the
experience, expertise, and truthfulness of the official lodging the military
secrets privilege claim, such that the official must speak truthfully. In the
instant case, the Court finds the affiants satisfy this burden.
B13
2. The Accident Investigation Report Need
Not Reveal Details of Secret Mission or
Equipment to Constitute Military Secret
Even if, as Plaintiffs suggest, the accident investigation
report contained no concrete data that would expose Air
Force intelligence, hamper national security, or affect the
public interest, sufficient cause for the Air Force’s assertion
of the military secrets privilege may have existed. To better
amplify the contention that the Air Force sought to disguise
its negligence, Plaintiffs cite a number of secondary sources
that speak to the chronic mechanical and _ technical
deficiencies of the B-29 bomber, catalog its role in World
War II, and place the Air Force’s developing technology
within a historical framework.* In so doing, Plaintiffs place
these matters of public record squarely at issue. To decide a
motion to dismiss, courts generally consider only the
allegations contained in the complaint, exhibits attached to
the complaint and matters of public record. Churchill v. Star
Enterprises, 183 F.3d 184, 190 (3d Cir. 1999) (emphasis
added) (citing Pension Benefit Guar. Corp. v. White Consol.
Indus. Inc., 998 F.2d 1192, 1196 (3d Cir.1993)):; Rose v.
Bartle, 871 F.2d 331, 339 n.3 (3d Cir.1989). See also 5A
Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357 (1990) (“In determining whether to grant
a Rule 12(b)(6) motion, the court primarily considers the
allegations in the complaint, although matters of public
record, orders, items appearing in the record of the case, and
exhibits attached to the complaint, also may be taken into
account.”).
4. In addition to the accident investigation report, the affidavits, the
District Court’s orders, witness statements, and attorney-client
correspondence, Plaintiffs also cite to Geoffrey Perret, Winged Victory:
The Army Air Forces in World War II, 448 (1993) (“Winged Victory”);
Wilbur H. Morrison, Point of No Return: The Story of the 20th Air Force
19 (1979) (“Point of No Return”); and Curtis E. LeMay and Bill Yenne,
Superfortress: The B-29 and American Air Power 61-64, 70-71, 78 (1988)
(“Superfortress”).
B14
Despite the plain language of Rule 12(b), which requires
conversion of a Rule 12(b) motion to a Rue 56 motion
whenever a district court considers materials outside the
pleadings, the Third Circuit and other appellate courts have
held that certain narrowly defined types of material may be
considered by the trial court without converting the motion
to dismiss. See In re Rockefeller Ctr. Prop., Inc. Secs. Litig.,
184 F.3d 280, 287 (3d Cir. 1999) (citing In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997) (A
court can consider a “ ‘document integral to or explicitly
relied upon in the complaint.” (quoting Shaw v. Digital
Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996))). See also,
PBGC v. White Consol. Indus. 998 F.2d 1192, 1196 (3d Cir.
1993) (A district court may examine an “undisputedly
authentic document that a defendant attaches as an
exhibit to a motion to dismiss if the plaintiffs claims are
based on the document.”). As the Third Circuit stated in In
re Rockefeller, “the rationale for these exceptions is that
‘the primary problem raised by looking to documents
outside the complaint—lack of notice to the plaintiff—is
dissipated ‘(wjhere plaintiff has actual notice ... and has
relied upon these documents in framing the complaint.’”
184 F.3d at 287. (citations omitted). Many other courts have
considered matters of public record in ruling on a motion to
dismiss for failure to state a claim upon which relief can be
granted under Rule 12(b)(6) without converting the motion
to one for summary judgment. See, e.g., In re Colonial
Mortgage Bankers Corp., 324 F.3d 12 (1st Cir. 2003) (stating
that while court generally may not consider material beyond
the four corners of complaint when ruling on motion to
dismiss without thereby converting the motion into one for
summary judgment, narrow exception exists for documents
whose authenticity is not disputed by parties, for official
public records, for documents central to plaintiffs claim, and
for documents sufficiently referred to in the complaint);
Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th
Cir. 1999) (concluding that the court may consider, in
addition to the pleadings, materials “embraced by the
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pleadings” and materials that are part of the public record);
Marshall County Health Care Auth. v. Shalala, 988 F.2d
1221 (D.C. Cir. 1993) (stating that matters of public record
are fair game in adjudicating motions to dismiss for failure
to state a claim, and that the court’s reference to such
matters does not convert motion to dismiss into motion for
summary judgment).” Naturally, Plaintiffs’ challenge to the
veracity of fifty-year-old military privilege claims requires
some reliance on contemporary intelligence. Because
Plaintiffs turn to numerous documents outside the four
corners of the complaint in order to bring matters of public
record to this Court’s attention, the Court may consider
those public documents and the factual considerations they
bring to bear on the motion before it. To determine whether
the Plaintiffs in this case have established fraud on the
court, this Court will examine those facts that, in addition to
averments in the complaint, exhibits, and the accident
investigation report, the public record now unearths.
Among the facts now widely known about the Boeing
B-29 bomber are the many mechanical and technical
problems that plagued the _ propeller-driven plane,
specifically its notoriously unreliable engines, which were
famed for catching fire. See, supra, n.4. The accident
investigation report concludes that engine failure caused
the crash on October 6, 1948; the report also indicates that
had the plane complied with the technical orders dated
May 1, 1947, the accident might have been avoided. Compl.
at Ex. I. It does not, as Plaintiffs point out, refer to any
newly developed electronic devices or secret electronic
equipment. Compl. 11 26, 32-34 & Exs. I & J. Yet,
Plaintiffs exclude from their historical recitation that four
5. For a more complete analysis of those materials courts have
considered on 12(b)6) motions, see Kurtis A. Kemper, Annotation,
What Matters Not Contained in the Pleadings May Be Considered in
Ruling on a Motion to Dismiss under Rule 12(6)(6) of the Federal Rules of
Civil Procedure or Motion for Judgment on the Pleadings Under Rule
12(c) Without Conversion to Motion for Summary Judgment, 138 A.L.R.
Fed. 393, 1997 WL 475158 (1997).
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years before the accident, in 1944, after bombing missions
against Japanese targets, three American B-29 bombers
were forced to land in Vladivostok, Russia, a town in the
then Soviet Union. See Superfortress, supra at 166-168
(outlining the details of the emergency landing, detention of
Air Force personnel, and confiscation of the planes); see also
Point of No Return, supra at 85 (summarizing that
in addition to these lost planes, three B-29’s were shot
down over Yawata, 10 others were lost, 95 airmen were dead
or missing, and one crew bailed out near Khabarovsk);
Von Hardesty, Made in the U.S.S.R., Air & Space Magazine,
February/March 2001, available at http://www.airspacemag.
com/ASM/Mag/Index/2001/FM/TU-4.html. (summarizing
events in Vladivastok); Associated Press, How Soviets
Copied America’s Best Bomber During WWII (Jan. 25,
2001), available at http://www.cnn.com/2001/US/01/25/
smithsonian.cold.war/ (same). The Soviet government
released the crews but kept the planes and, between 1945
and 1947, used reverse engineering to build a copy of the
B-29-the Tu-4 designed by Andrei Tupolev.® Point of No
Return, supra, at 85-86. See also Made in the U.S.S.R, supra,
at 2 (noting that this technology transfer gave the Soviets
“an intercontinental bomber capable of striking New York
City and the industrial heartland of the United States” in a
fraction of the time needed to develop their own design).
The replicas copied the B-29 almost exactly, including the
fire-prone engines. Superfortress, supra, at 167 (“The Tu-4
was outwardl) identical to the B-29...so faithful to the
originals that the Soviets had many of the same technical
problems.”); Made in U.S.S.R., supra, at 12 (“Operational
deployment of the Tu-4 brought a series of breakdowns and
near disasters as the airplane encountered teething
problems such as engine overheating, a glitch that
6. The Smithsonian’s accounts of the Tu-4 development are based
largely on the writings of Leonid Kerber, who worked with Tupolev and
specialized in radios and navigation instruments. His unofficial biography
about Tupolev, Tupolev’s Prison Workshop, is reprinted by the
Smithsonian Institution Press as Stalin’s Aviation Gulag (1996).
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mirrored the U.S. experience with the first generation of
B-29’s.”’). As a result, though “World War II began with the
catastrophic failure of U.S. air defenses over Pearl Harbor
and in the Philippines,” the atomic attacks on Hiroshima
and Nagasaki contributed to the war’s end and were
supposed to “usher in a time when a U.S. nuclear
monopoly would restore America’s strategic
invulnerability;” that dominance was short-lived. Lester
W. Grau & Jacob W. Kipp, Maintaining Friendly Skies:
Rediscovering Theater Aerospace Defense, AEROSPACE
PowER J. 3448 (July 1, 2002). Following the construction if
its nuclear capable Tu-4, the U.S.S.R. used the B-29
reproduction to detonate its first atomic bomb in 1949. Id.
These facts might seem harmless decades after the Cold
War began, but in Reynolds, the Supreme Court determined
that as a matter of law, “(t]he occasion for the privilege is
appropriate” if the court is satisfied, “from all
circumstances of the case, that there is a reasonable
danger that compulsion of the evidence will expose
military matters which, in the interest of national
security, should not be divulged.” Reynolds, 345 U.S. 1, 10
(1953). The Court in Reynolds also took “judicial notice that
this [was] a time of vigorous preparation for national
defense.” Id. at 11. In 1948, amid Communist paranoia, it
is hardly shocking to contemplate an Air Force eager to
protect from public view the accident investigation report
that mentions modifications needed for the B-29, and by
extension the Tu-4. By no means, will this Court draw firm
conclusions as to military intelligence concerns in existence
some fifty years ago. Rather, we will examine the events
contemporaneous to the accident only in order to shed light
on factors surrounding the Air Force’s assertion of military
privilege. It is at least conceivable that were the accident
investigation report released, it might have alerted the
otherwise unaware Soviets to a technical problem in the
Tu-4 that the May 1, 1947 technical order sought to remedy
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in the B-29.’ Though the Plaintiffs argue that the Air Force
deliberately hid its obvious negligence behind fraudulent
affidavits, disclosure of this now seemingly innocuous report
would reveal far more than the negligence Plaintiffs read; it
may have been of great moment to sophisticated intelligence
analysts and Soviet engineers alike.® Pl’s Opp. at 12. Viewed
against this political and technical backdrop, it seems that
the accident investigation report may have reasonably
contained sufficient intelligence, if not about the secret
equipment or mission, then about ongoing developments in
Air Force technical engineering, to warrant an assertion of
the military secrets privilege.
B. Plaintiffs Have Not Sufficiently Established a
Claim Under Rule 60(b)(6)
Rule 60(b)(6) authorizes courts to grant post-judgment
remedies for “any other reason justifying relief from the
operation of the judgment.” Fed. R. Civ. P. 60(b)(6). Both
the Supreme Court and the Third Circuit have recognized
that Rule 60(b)(6) permits an independent action for fraud
perpetrated by one party upon another where necessary “to
prevent a grave miscarriage of justice.” United States v.
Beggerly, 524 U.S. 38, 46-47 (1998) (holding that in an
action to set aside a settlement between the claimants and
the government, the alleged failure by the government to
make full disclosures failed to satisfy the requirements of an
independent action for relief from the judgment). “If relief
may be obtained through an independent action...where
7. Coincidentally, though the accident investigation report mentions
little detail of the secret mission and electronic equipment on that flight,
the Court notes that the B-29 also saw military service two years later.
From 1950 to 1953 in Korea, electronic weapons, or radio controlled
bombs known as Razons, were dropped against bridges. Boeing World
Headquarters, Post-War Developments: 1946-1956, at http://
www.boeing.com/history/boeing/postwar.htm!.
8. The War Department also asked returning airmen interned in the
Soviet Union to keep silent about their time there due to the emerging
friction between the Soviets and the Allies. Made in the U.S.S.R., supra,
at 3.
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the most that may be charged against the Government is
failure to furnish relevant information that would at best
form the basis for a Rule 60(b)(3) motion, the strict l-year
time limit on such motions would be set at naught.” Id. at 46
(emphasis added). In the complaint, Plaintiffs do not assert
an independent action on the basis of fraud by one party
upon another under Rule 60(b)(6). Pl’s Opp. at 19-21; Reply
at 6. Not until the Memorandum in Opposition to the
Government’s Motion to Dismiss do Plaintiffs submit that
the government sought to defraud the widows by claiming
the military secrets privilege. Plaintiffs fail to set forth
allegations in the complaint amounting to gross injustice to
warrant relief. Reply at 7 (citing, for example Campaniello
Imports, Ltd. v. Saporiti Italia, S.p.A., 117 F.3d 655, 663 (2d
Cir. 1997) (holding that plaintiff who neither adequately
established fraud nor escaped responsibility for a voluntary
agreement could not obtain relief from the judgment);
George P. Reintjes Co. v. Riley Soker Corp., 71 F.3d 44,
48-49 (1st Cir. 1995) (“[Whhile the notion that it would be
‘against conscience’ to let a particular judgment stand may
in some instances serve to tip what would otherwise be
ordinary fraud into the special category that can invoke a
court’s inherent powers to breach finality, [the plaintiff] has
failed to so move us here (citing Marshall v. Holmes, 141
U.S. 589, 595 (1891), Hazel-Atlas Glass, 322 U.S. at 244-45,
64)). But, because the independent action under Rule
60(b)(3) fails, leaving Plaintiffs with no viable claim
against the Government, the Court will entertain a
discussion of the merits of Plaintiffs’ Rule 60(b)(6)
arguments out of an abundance of caution.
1. Settlement Agreement Did Not Constitute
a Grave Miscarriage of Justice In Support
of A Claim for Relief Under Rule 60(b)(6)
The Government correctly argues that the Plaintiffs
cannot undo the careful and prudent decision to settle their
claims and relitigate issues they voluntarily put to rest more
than fifty years ago. In Bandai Am. Inc. v. Bally Midway
B20
Mfg. Co., 775 F.2d 70 (3d Cir 1985), the Third Circuit
recognized that under Rule 60(b)(3), an attorney’s
deliberate attempt to mislead the court may suffice to
reopen the judgment. Bandai, 775 F.2d at 73 (citing
Hazel-Atlas Glass Co. v., Hartford Empire Co., 322 US.
238, 245-46 (1944), questioned on other grounds, Standard
Oil Co. of Cal. v. United States, 429 U.S. 17 (1976)). But, the
Court of Appeals also noted that alleged misconduct or
perjury does not prevent the moving party from “fully and
fairly presenting [its] case” unless the “misrepresentations
relied up on were clearly material to the outcome of the
litigation.” Id. (citing Publicker v. Shallcross, 106 F.2d 949
(3d Cir 1939), cert. denied, 308 U.S. 624, Schum v. Bailey,
578 F.2d 493, 499 (3d Cir. 1978); Stridiron v. Stridiron, 698
F.2d 204, 207 (3d Cir. 1983). “The judicial system’s interest
in finality and in efficient administration dictates that,
absent extraordinary circumstances, litigants should not be
permitted to relitigate issues that they have already had a
fair opportunity to contest.” Skretvedt v. E.I. DuPont De
Nemours, 372 F.3d 193, 204 (3d Cir.) (citations omitted).
Settlement, as the Government rightly concludes, is a
pragmatic decision made daily by civil litigants after a
measured evaluation of the merits of their claims
notwithstanding foreseeable obstacles. Hrg. Tr. at 14. See
United States v. Bank of N.Y., 14 F.3d 756 (2nd Cir. 1994)
(noting that when party makes the deliberate, strategic
choice to settle, she cannot be relieved of such choice merely
because of her own incorrect assessment); Schultz, 24 F.3d
at 1024 (“When a party voluntarily accepted the earlier
decision, its burden ‘is perhaps even more formidable than if
it had litigated the claim and lost.’” (citing United States v.
Fort Smith, 760 F.2d 231, 234 (8th Cir. 1985)). Altogether
absent from the pleadings in this case is a sufficient showing
of egregious conduct by any Air Force representatives. As
such, this Court cannot, in good conscience, find a gross
miscarriage of justice or grant Plaintiffs the relief from
judgment they seek.
B21
2. The Supreme Court Contemplated Other
. Discovery Options For Plaintiffs
It is undisputed that in Reynolds, the Supreme Court
left other avenues of discovery open to Plaintiffs, including
examination of the surviving crew members and the right to
challenge the claim of military privilege by an adequate
showing of necessity. Reynolds, 345 U.S. 1, 12 (1953). More
generally, the Federal Rules of Civil Procedure provide, in
pertinent part, that:
Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject
matter involved in the pending action, whether it
relates to the claim or defense of the party seeking
discovery or to the claim or defense of any other
party....The information sought need not be
admissible at the trial if the information sought
appears ressonably calculated to lead to the
discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1). It is widely recognized that the
federal rules allow broad and liberal] discovery. Pacitti v.
Macy’s, 193 F.3d 766, 777-78 (3d Cir. 1999) (citations
omitted). In his affidavit, the Judge Advocate General
offered the testimony of Air Force military personnel who
survived the crash, provided at the Government’s expense.
Compl. at Ex. D. Those witnesses could “testify regarding all
matters pertaining to the cause of the accident, except as to
facts and matters of a classified nature.” Id. In order to
refresh their memories, the witnesses were free to rely on
those confidential Air Force records, including the
statements witnesses made to the Aircraft Accident
Investigating Board. Id. And, though Plaintiffs argue that
they should not have been required to conduct discovery
independent of the accident report, this argument is
contingent upon a finding of fraud which is absent here.
Moreover, as Plaintiffs concede, they only partially followed
the Supreme Court’s guidance by deposing the surviving
witnesses. Reynolds, 345 U.S. at 11-12; Hrg. Tr. at 21. They
B22
did not, as suggested, revisit the question of military secrets
privilege by offering the requisite showing of necessity, but
instead, made the calculated choice to settle their claims. Id.
The litigation reached its close by virtue of a strategic
decision by Plaintiffs that should not now be revisited.
V. CONCLUSION
For all these reasons, it is hereby ORDERED that the
Motion to Dismiss (Doc. No. 6) is GRANTED. The Clerk of
Court is instructed to statistically close this matter.
BY THE COURT:
/s/ Legrome Davis
Legrome D. Davis, J.
Cl
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PATRICIA J. HERRING,
individually, JUDITH PALYA
LOETHER, WILLIAM PALYA,
ROBERT PALYA, individually and : Civil Action No.
as living heirs of Elizabeth Palya
(deceased), SUSAN BRAUNER and -
CATHERINE BRAUNER,
individually and as living heirs of
Phyllis Brauner (deceased),
Plaintiffs,
“¥.<
UNITED STATES OF AMERICA, -: JURY TRIAL DEMANDED
Defendant
INDEPENDENT ACTION FOR RELIEF FROM
JUDGMENT TO REMEDY FRAUD ON THE COURT
Plaintiffs Patricia J. Herring (“Herring”), individually,
Judith Palya Loether, William Palya, Robert Palya,
individually and as living heirs of Elizabeth Palya
(collectively, the “Palyas”), and Susan Brauner and
Catherine Braune#,, individually and as living heirs of
Phyllis Brauner ‘collectively, the “Brauners”), by and
through their undersigned attorneys, file this independent
action for relief from judgment to remedy fraud on the court
pursuant to Federal Rule of Civil Procedure 60(b).
C2
I. PRELIMINARY STATEMENT
Three widows came before this Court in 1949 asserting
claims against the United States under the Federal Tort
Claims Act. Their husbands had died in the crash of an Air
Force plane. This Court awarded each of them ful!
compensation. But the United States was bent on
overturning their judgments, and — to accomplish this - it
committed a fraud not only upon the widows, but upon this
Court, the Third Circuit Court of Appeals, and the Supreme
Court. As a result, what the widows had won was lost. One
of the widows and the children of the other two ask this
Court to right this wrong.
At the heart of the case is a report the Air Force
prepared on the accident that had resulted in the deaths of
the widows’ husbands, who were civilian engineers assisting
the Air Force with the development and testing of
sophisticated electronic guidance systems when the
tragedy occurred. The Air Force refused to produce this
report, even to Judge Kirkpatrick, for in camera review.
Judge Kirkpatrick, therefore, ruled for the widows on
liability, determined damages, and entered judgment. The
Third Circuit affirmed. Undeterred, the United States tcok
the case to the Supreme Court and advanced a sweeping
claim of executive privilege, contending that the report
contained “military secrets” so sensitive not even the
district court should see them. It pointed to affidavits of
two of the highest-ranking men in the Air Force in support
of this plea. The Supreme Court took the government at its
word, and reversed. Without these documents, the widows
settled with the government for less than the value of their
judgments. ey
Fifty years later, one of the plaintiffs, Judith Palya
Loether, came across an internet website offering access to
recently-declassified military aircraft accident reports. She
obtained the report that the Air Force fought so hard to
prevent her mother and the federal courts from seeing and
was astonished to find that the report contains nothing
approaching a “military secret.” There is not one mention of
C3
the secret mission or the secret equipment that had
occupied these men on the day of the crash. The accident
report is no more than an accounts of a flight that, due to the
Air Force’s negligence, went tragically awry. In telling three
federal courts otherwise by way of sworn affidavits, the Air
Force lied. And, in reliance upon the Air Force’s lie, the
Supreme Court deprived the widows of their judgments.
Plaintiffs urge that it is now for this Court, in exercise of its
authority under Rule 60(b) and its inherent power to
remedy a fraud on the court, to see that justice is done.
Il. PARTIES
1. Plaintiff Herring (formerly, Patricia J. Reynolds) is
an individual resident of the State of Indiana. She is the
widow of the deceased, Robert Reynolds, and was an original
party to Reynolds v. United States, Civil Action No. $0142
(E.D. Pa, filed Sept. 27, 1949). (A true and correct copy of the
docket entries in the Reynolds case is attached as Exhibit A.)
2. Plaintiffs the Brauners are the children and living
heirs of the deceased, William H. Brauner. They reside in
the Commonwealth of Massachusetts. Their mother, Phyllis
Brauner (now deceased), was an original party to Brauner,
et al. v. United States, Civil Action No. 9793 (E.D. Pa., filed
June 21, 1949). (A true and correct copy of the docket
entries in the Brauner case is attached as Exhibit B.) The
Brauners bring this suit individually and as living heirs of
Phyllis Brauner.
3. Plaintiffs the Palyas are the children and living
heirs of the deceased, Albert H. Palya. They reside in New
Jersey, Massachusetts and Alabama. Their mother,
Elizabeth Palya (now deceased), was an original party to
Brauner, et al. v. United States, Civil Action No. 9793 (E.D.
Pa., filed June 21, 1949). They bring this suit individually
and as the living heirs of Elizabeth Palya.
C4
4. Defendant United States of America was an
original party defendant to Reynolds v. United States,
Civil Action No. 10142 (E.D. Pa.), and Brauner, et al. v.
United States, Civil Action No. 9793 (E.D. Pa.).
5. The Reynolds and Brauner actions were
consolidated for trial by stipulation and order dated
December 8, 1949. Published decisions and orders in the
consolidated Reynolds and Brauner cases are reported at
Brauner v. United States, 10 F.R.D. 468 (E.D. Pa. 1950),
United States v. Reynolds, 192 F.2d 987 (3d Cir. 1951), and
United States v. Reynolds, 345 U.S. 1 (1953).
III. JURISDICTION AND VENUE
6. This Court has subject matter jurisdiction
pursuant to 28 U.S.C. § 1331 because the acts complained
of raise federal! questions under the Constitution and laws of
the United States. This Court also has jurisdiction ancillary
to its original exercise of jurisdiction in Reynolds v. United
States, Civil Action No. 10142 (E.D. Pa.), and Brauner, et al.
v. United States, Civil Action No. 9793 (E.D. Pa.). See
Standard Oil Co. of California v. United States, 429 U.S. 17
(1976).
7. Venue is proper in this Court under 28 U.S.C. §
1391(b) because the fraud committed by the United States
was practiced in this district and the injuries occasioned by
the fraud were suffered in this district by named plaintiffs.
IV. FACTS
The 1949 Litigation
8. On October 6, 1948, a United States Air Force B-29
Superfortress Bomber crashed outside of Waycross, Georgia,
while on a mission for the purposes of testing newly-
developed electronic equipment. The crash killed nine of the
thirteen men on board.
C5
9. Three of the deceased, Robert Reynolds, William H.
Brauner, and Albert H. Palya, were civilian research and
development engineers working in the private sector for the
Radio Corporation of America in Camden, New Jersey, and
the Franklin Institute of Technology in Philadelphia,
Pennsylvania. These men were hired to assist Air Force
personnel with the development and testing of the electronic
equipment.
10. In 1949, the three widows of the civilian deceased
brought suits against the United States in this Court
seeking damages under the Federal Torts Claims Act for
wrongful death. The suits were captioned Reynolds v.
United States, Civil Action No. 10142 (E.D. Pa.), and
Brauner, et al. v. United States, Civil Action No. 9793
(E.D. Pa.). They were assigned to Judge William H.
Kirkpatrick.
!1. In discovery, the widows sought production of the
Air Force’s official accident invistigation report (“the
Accident Report”) and several statements of surviving
witnesses. The Air Force refused to produce these specified
documents and the widows moved for an order compelling
their production. See Brauner v. United States., 10 F.R.D.
468,469 (E.D. Pa. 1950).
12. In response to the widows’ motion to compel, the
government originally did not claim that the requested
documents should be protected as “state secrets or facts
which might harm the [glovernment in its diplomatic
relations, military operations or measures for national
security.” 10 F.R.D. at 471-72. Rather. the government
claimed a different kind of privilege:
Its position is that the proceedings of boards of
investigation of the armed services should be
privileged in order to allow the free and unhampered
self-criticism within the service necessary to obtain
maximum efficiency, fix responsibility and maintain
proper discipline.
C6
Id. at 472. After full briefing, this Court concluded that no
such privilege existed and ordered the United States to
produce the Accident Report and witness statements to the
widows. Id.
13. The United States moved for a rehearing in August
1950. In support of this motion, the government submitted
an affidavit ana a formal claim of privilege taken by the
Secretary of the Air Force, Thomas K. Finletter, as well an
affidavit taken by the Judge Advocate General of the Air
Force, Major General Reginald C. Harmon. ‘rhese affidavits
(hereinafter, “the Affidavits”) amended and _ greatly
expanded the claims of privilege urged before this Court.
14. Secretary Finletter stated in his Affidavit and claim
of privilege that
[T]he [United States] further objects to the production
of this report, together with the statements of witnesses,
for the reason that the aircraft in question, together
with the personnel on board, were engaged in a
confidential mission of the Air Force. The airplane
likewise carried confidential equipment on board and
any disclosure of its mission or information concerning
its operation or performance would be prejudicial to this
Department and would not be in the public interest.
(A true and correct copy of the Claim of Privilege of Thomas
K. Finletter is attached hereto as Exhibit C.)
15. Major General Harmon’s Affidavit swore that the
materials could not be furnished “without seriously
hampering national security, flying safety and the
development of highly technical and secret military
equipment.” (A true and correct copy of the Affidavit of
Reginald C. Harmon is attached hereto as Exhibit D.)
16. On September 21, 1950, in light of these
submissions, Judge Kirkpatrick amended his prior order
and directed the United States to produce the following
C7
documents to the Court for in camera inspection by October
4, 1950:
“(a) the report and findings of the official
investigation of the crash of defendant’s B-29 type of
aircraft near Waycross, Georgia on October 6, 1948.
(b) the statement with reference to such crash of
Captain Herbert W. Moore, 1279A.
(c) the statement with reference to such crash of
Staff Sergeant Walter J. Peny, AF 698025.
(d) the statement with reference to such crash of
Technical Sergeant Ear] W. Murrhee.”
(A true and correct copy of the Amended Order for
Production and Inspection of Documents, dated September
21, 1950, is attached hereto as Exhibit E.)
17. Notwithstanding this order, the United States
refused to produce the specified documents to the Court
for in camera review. Accordingly, on October 12, 1950, this
Court held the government in default and entered a finding
of liability in favor of the widows. (A true and correct copy of
the unpublished October 12, 1950 decision of Judge
Kirkpatrick is attached hereto as Exhibit F.)
18. The Court thereafter conducted a hearing on
damages. Following this hearing, the Court determined
that the United States should pay damages to the widows
totaling $225,000 ($80,000 each to Mrs. Brauner and Mrs.
Payla, plus $65,000 to Mrs. Reynolds (now Ms. Herring)).
Judge Kirkpatrick specifically found that these sums
represented the full value of the working lives of the
deceased, reduced to present value. (A true and correct copy
of the November 27, 1950 Hearing Transcript and the
February 20, 1951 unpublished decision on the issue of
damages are attached hereto as Exhibits G and H,
respectively.) Judgments were entered in favor of the
widows on February 27, 1951.
C8
The Government Appeals
19. The United States appealed. In United States v.
Reynolds, 192 F.2d 987 (3d Cir. 1951), the Court of Appeals
upheld the decisions of this Court and affirmed the
judgments entered in favor of the widows. It agreed that it
was within the competence of the district court to review the
requested documents in camera in an effort to assess the
validity and proper scope of the government’s claim of
privilege. Id. at 997.
20. The United States petitioned the United States
Supreme Court for certiorari, advancing a sweeping claim of
executive privilege. The Supreme Court granted certiorari
on the question posed by the government, 343 U.S. 918
(1952), and thereafter reversed the decisions of this Court
and the Third Circuit, vacating the widows’ judgments.
United States v. Reynolds, 345 U.S. 1 (1953).
21. In so ruling the Supreme Court found that the
claim of “state secrets” protection that the government had
made out through the Air Force’s Affidavits was sufficient to
justify withholding the Accident Report and witness
statements, even from the federal courts:
[I]t is apparent that these electronic devices must be
kept secret if their full military advantage is to be
exploited in the national interests ... {and that) there
was a reasonable danger that the accident investigation
report would contain references to the secret electronic
equipment which was the primary concern of the
mission.
United States v. Reynolds, 345 U.S. at 10. The Supreme
Court therefore concluded that “when the formal claim of
privilege was filed by the Secretary of the Air Force, there
was certainly a sufficient showing of privilege to cut off
further demand for the documents....” Id. at 11.
C9
The Settlements
22. After remand, without the benefit of the Accident
Report and witness statements, the widows settled their
cases with the government. Their settlements totaled
$170,000, $55,000 less than the judgments the widows had
originally obtained. Pursuant to the settlements, the
Reynolds and Brauner cases were dismissed on August 5,
1953.
The Fraud Is Discovered
23. The government classified the Accident Report and
witness statements, ostensibly to maintain their secrecy.
These documents remained classified for nearly 50 years.
24. In early 2000, one of the daughters of the deceased,
Ms. Palya Loether, learned through internet research that
previously-classified documents regarding military aircraft
accidents had been made available to the public by the
United States government. Curious about the secret mission
her father had undertaken with the Air Force on the day of
his death, Ms. Palya Loether ordered and received a copy of
the declassified documents relating to her father’s accident
in or about February or March of 2000.
25. The documents that were the subject of Judge
Kirkpatrick’s September 21, 1950 Order providing for an
in camera review of the government’s claim of privilege, and
of the ensuing district court and appellate proceedings, were
included in the materials Ms. Palya Loether received.
Ms. Palya Loether thus saw for the first time (a) the
official “Report of Special Investigation of Aircraft Accident,
Involving TB-29-100BH No 45-21866” (b) a “Memorandum
for the Chief of Staff, United States Airforce, Re: Aircraft
Accident TB-29-100BH No 45-21866,” (c) a “Summary of
B-29 Aircraft Accident,” (d) the statement with reference to
such crash of Captain Herbert W. Moore, 1279A, (e) the
statement with reference to such crash of Staff Sergeant
Walter J. Peny, AF 698025, and (f) the statement with
reference to such crash of Technical Sergeant Earl W.
C10
Murrhee. (True and correct copies of these declassified
documents are collectively attached hereto as Exhibit I; a
typeset copy of these documents has been prepared and is
attached as Exhibit J.)
26. These newly-uncovered documents revealed that
the decision of the Supreme Court in United States v.
Reynolds, 345 U.S. 1 (1953), the settlement, and the
dismissal of the Reynolds and Brauner cases were
procured by a fraud on the courts. Contrary to the
statements in the Affidavits, on which the Supreme Court
expressly relied, not one of the documents that were the
subject of the trial court proceedings and orders contain any
secret or privileged information. The documents consist,
instead, of admissions of negligence on the part of the Air
Force.
The Families Attempt to File a Petition for Writ of
Error Coram Nobis to Remedy Fraud On The Court
27. Ms. Palya Loether attempted over the course of the
next year to locate the other families who were affected by
the government’s misconduct. Ultimately, she succeeded.
The families then sought out the law firm of Charles J.
Biddle, who had represented the widows in the original
proceedings, in an effort to see if the injustice done the
families could be remedied.
28. On or about February 26, 2003, the plaintiffs in
this action filed a “Petition for a Writ of Error Coram Nobis
to Remedy Fraud Upon the Court” with the United States
Supreme Court, pursuant to Supreme Court Rule 20 and the
All Writs Act, 28 U.S.C. § 1651.
29. The Supreme Court Clerk’s Office refused to
docket the case and required the petitioners to file a
“motion for leave to file” along with their petition.
Petitioners complied. The government opposed petitioners’
motion to file: Its opening argument was that the petitioners
should first seek relief in the district court by way of an
“iedependent action” under Rule 60(b).
Cll
30. In a one line order dated June 23, 2003, the
Supreme Court denied petitioners’ motion for leave to file
their petition for a writ of error coram nobis, thereby
remitting the plaintiffs to such other remedies as the law
provides.
V. CLAIM FOR RELIEF FOR FRAUD
ON THE COURTS
31. The allegations in paragraphs 1 through 30, above,
are incorporated herein by reference as if set forth in full.
32. Contrary to the claim of privilege and sworn
Affidavits submitted by Secretary Finletter and Judge
Advocate General Harmon, the Accident Report and
witness statements that Judge Kirkpatrick had ordered
the government to produce contain no military secrets or
other information implicating national security interests.
33. Instead, the Accident Report consists of nothing
more than an account of the accident and a series of
admissions that it was the Air Force’s negligence that
caused the deaths of the civilian engineers. Thus, the
Accident Report reveals that:
(a) The main cause of the accident as the failure
of Air Force personne! to comply with Technical Orders
01-20EJ-177 and 01-20EJ-178, which provided for
necessary “changes to the exhaust manifold
assemblies for the purposes of eliminating a definite
fire hazard.”
(b) These mandatory changes involved the
installation of heat deflector shields “to prevent
excessive heat from entering the accessory section [of
the engine]}.”
(c) Without these changes to the engine manifold,
“(t]he aircraft is not considered to have been safe for
flight.”
C12
(d) The mandatory heat deflector shields were not
installed in the B-29 type aircraft prior to flight, as
required, and that the No. 1 engine of the plane caught
fire as a result.
(e) The fire had begun in the accessory section of
the No. 1 engine, exactly where it would have started
without the required heat deflectors.
(1) None of civilian engineers were briefed prior to
the flight on emergency and aircraft evacuation
procedures, as required by Air Force regulations.
(g) The aircraft commander, copilot and engineer
had never flown together as a crew prior to this flight.
And,
(h) When the fire first broke out in the No. 1
engine, the pilot inadvertently “feathered” the No. 4
engine, accidentally leaving a second working engine
disabled. See Exhibits I and J. There is not one mention
of anything remotely approaching a military secret.
34. Likewise, the surviving witnesses’ statements that
were ordered produced by this Court in 1950 consist of
nothing more than the witnesses’ accounts of the flight.
They make no mention whatsoever of “secret” equipment,
the aircraft’s mission or any other information implicating
military secrets or national security concerns. Id.
35. The Accident Report and the witness statements
also show that the Air Force lied in earlier discovery in the
cases. This includes a lie told in the Air Force’s sworn
responses to interrogatories about the main cause of the
accident:
Q: 31. (a) Have any modifications been prescribed by
defendants for the engines in its B-29 type aircraft to
prevent overheating of the engines and/or to reduce the fire
hazard in the engines?
(b) If so, when were such modifications prescribed?
C13
(c) If so, has any such modifications been carried out
on the engines of the particular B-29 type aircraft involved
in the instant case? Give details.
A: 31. No.
(A true and correct copy of the Interrogatories and
Responses to Interrogatories are attached hereto as
Exhibit K.)
36. The Affidavits advanced in support of the
government’s claims of privilege, as well as_ the
government’s sworn discovery responses, were intended to,
and ultimately did, cover-up and suppress conclusive
evidence that the Air Force’s negligence caused the deaths
of the three civilian engineers.
37. Moreover, the Affidavits advanced in support of the
government’s claims of privilege were intended to, and
ultimately did, set up for the government a “test case” for a
favorable judicial ruling on claims of an executive or “state
secrets” privilege - a test case built on the fraudulent
premise that the documents in question contained “secret”
military or national security information.
38. The Affidavits advanced in support of the
government’s claims of privilege, as well as_ the
government’s sworn discovery responses, were
intentionally and knowingly false when made ‘or were
made in reckless disregard of whether the statements
contained therein were true or false. Government officials,
including Secretary Finletter and Judge Advocate General
Harmon, acted with knowledge of the falsity of the
statements in the Affidavits or with reckless disregard for
the truth or falsity of such statements; indeed, the falsity of
such statements is apparent upon reading the documents
that were the subject of this Court’s orders and the claims of
privilege.
39. The government intended that the federal courts
would rely upon its false statements and honor its false
C14
claim of privilege to deny the widows discoverable evidence
to which they were lawfully entitled. The government
further intended, after this Court entered judgments in
favor of the widows, that the federal appellate courts would
rely upon its false statements to reverse such judgments. In
fact, the United States Supreme Court did rely on those
statements to reverse the widows’ judgments. And, this
Court ultimately relied on them to enforce the Supreme
Court’s mandate, to approve the parties’ subsequent
settlement, and to dismiss the Reynolds and Brauner
actions.
40. The widows were without knowledge that the
government’s claims of opriviiege were false and
fraudulent. They settled with the government and agreed
to a dismissal of their lawsuits in ignorance of the
government’s misconduct. It was only some 50 years later,
after the government declassified the purportedly “secret”
documents that were the subject of the Reynolds and
Brauner actions, that Ms. Herring and the other widows’
families came to learn the truth.
41. By the foregoing conduct, the government
practiced a fraud on this Court and other federal courts.
42. The government’s fraud on the courts is manifestly
unjust and shocks the conscience. The government’s fraud
directly harmed three widows and their five young children,
who were forced to march through a series of appeals to
defend their judgments, ultimately lost those judgments,
and then settled for less than they were entitled. Moreover,
the government’s fraud was intended to and did subvert the
processes of this Court, the Court of Appeals, and the United
States Supreme Court.
43. Asa result of the government’s fraud on the courts,
the widows were deprived of judgments to which they were
lawfully entitled and they and their heirs suffered
substantial loss for which they should be compensated in
damages. The settlements that the widows made with the
C15
government and the dismissals this Court entered, after the
widows’ judgments were wrongly vacated, are all tainted by
the government’s fraud, and are no bar to according
plaintiffs relief pursuant to the Court’s authority under
the Federal Rules and the Court’s inherent powers.
44. The proper measure of the plaintiffs’ damages for
the government’s fraud on the courts is the difference
between the amounts the widows were entitled to pursuant
to the judgments less amounts paid to the widows pursuant
to the settlements, increased to present value at a market
interest rate in order fully and fairly to compensate the
plaintiffs for their loss. Such damages are in excess of
$1 million.
45. By reason of the government’s fraud on the courts,
the plaintiffs are also entitled to an award of their attorneys’
fees and costs of litigation.
WHEREFORE, plaintiffs pray that this Court enter a
judgment in their favor and against the United States:
A. Ruling that the United States perpetrated a fraud
on the federal courts in the Reynolds and Brauner actions;
and,
B. Awarding plaintiffs (1) damages as aforesaid,
including interest at a market rate since February
27, 1951, (2) their attorneys’ fees and costs of litigation,
and (3) such other and further relief as this Court deems
just and proper.
DATE: October 1, 2003
/s/ Wilson M. Brown, III
Wilson M. Brown, III
Jeff A. Almeida
DRINKER BIDDLE & REATH LLP
One Logan Square
18th and Cherry Streets
Philadciphia, Pennsylvania 19107
(215) 988-2700
(215) 988-2757 (facsimile)
C16
Attorneys for Plaintiffs
Patricia J. Herring, Judith Palya Loether,
William Palya, Robert Palya,
Susan Brauner and Catherine Brauner
Demand for Jury Trial
Plaintiffs demand a trial by jury of all issues so triable in
this cause.
DATE: October 1, 2003
/s/ Wilson M. Brown, III
Wilson M. Brown, III
Jeff A. Almeida
DRINKER BIDDLE & REATH LLP
One Logan Square
18th and Cherry Streets
Philadelphia, Pennsylvania 19107
(215) 988-2700
(215) 988-2757 (facsimile)
Attorneys for Plaintiffs
Patricia J. Herring, Judith Palya Loether,
William Palya, Robert Palya,
Susan Brauner and Catherine Brauner
C17
EXHIBIT A
C18
DOCKET
DOCKET 10142
PATRICIA J. REYNOLDS
vs.
THE UNITED STATES OF AMERICA
Basis of Action Death
ATTORNEYS
For Plaintiff:
Charles J. Biddle
For Defendant:
G.A. Gleeson
DATE
MONTH DAY YEAR PLAINTIFF’S ACCOUNT RECEIVED DISBURSED
Sept. 27 1949 C.J.B. $15.00
Dec. 14 1949 TO US. TREAS. $15.00
C19
UNITED STATES DISTRICT COURT
September 27, 1949
September 27, 1949
November 9, 1949
November 22, 1949
November 22, 1949
December 8, 1949
June 30, 1950
July 20, 1950
August 30, 1950
September 21, 1950
October 10, 1950
~ October 10, 1950
Complaint filed.
Summons exit.
Summons returned “on September 28
- 1949 served on Gerald A. Gleeson,
Esq.” and “on October 10 - 1949
served on the Attorney General by
registered mail” and filed.
Answer filed.
Order to place case on trial list filed.
Motion for stipulation of counsel and
Order of Court consolidating this case
with civil action #9793 for trial filed
(#9793). Notes 12/9/49.
Opinion Kirkpatrick J. denying
defendant’s motion to quash and
granting plaintiffs motion to
produce filed (#9793).
Order of Court permitting plaintiff to
inspect certain documents etc. and
staying all other proceedings until
order is complied with or vacated
filed (#9793). Noted 7/21/50.
Transcript of hearing on Aug. 9, 1950
before Kirkpatrick J. at Washington
D.C. filed (see c.a. #9793)
Amended order re inspection of
documents, filed. (see #9793)
Petition for rehearing on motion to
quash order and ~motion for
production of documents, filed.
Claim of Privilege by Secretary of Air
Force, filed.
October 10, 1950
October 12, 1950
November 27, 1950
December 11, 1950
December 18, 1950
December 18, 1950
February 20, 1951
February 27, 1951
March 2, 1951
April 20, 1951
April 20, 1951
May 29, 1951
November 8, 1951
January 15, 1952
C20
Affidavit of Judge Advocate General,
U.S. Air Force, filed.
Order of Court that certain facts be
taken as established, filed 10/13/50.
Notes and Notice mailed.
Trial (Kirkpatrick J.). Witnesses
sworn.
Transcript of testimony filed (#9793).
Plaintiffs Requests for findings of
fact filed.
Plaintiff's Requests for conclusions of
law, filed.
Opinion, Kirkpatrick J. finding in
favor of plaintiff, affirming certain
plaintiffs requests for findings of
fact and conclusions of law filed.
Decree granting judgment in favor of
plaintiff in the sum of $65,000.00,
filed. Noted and notice mailed 2/28/51.
Transcript of hearing of November 21,
1950 (In Chambers, K., J.) filed.
Notice of Appeal of defendant filed (4/
23/51 Copy to Charles J. Biddle).
Copy of Clerk’s notice to U.S. Court of
Appeals filed.
Record transmitted to U.S. Court of
Appeals.
Letter of U.S. Attorney together with
letter of Dept. of the Air Force filed
(C.A. #9793).
Mandate of U.S. Court of Appeals
affirming judgment of this Court filed.
March 27, 1953
April 13, 1953
April 13, 1953
June 22, 1953
August 5, 1953
August 5, 1953
C21
Notice of taking depositions of Capt.
Herbert W. Moore, et al. filed.
Certified Copy of Order of U.S. Court
of Appeals recalling mandate, filed. (4/
14/53 Mandate returned to U.S. Court
of Appeals.)
Mandate of U.S. Supreme Court
reversing judgment of U.S. Court of
Appeals and remanding case to U.S.
District Court for further
proceedings, filed (#9793).
Stipulation of Counsel for
compromise settlement and Order of
Court approving same, filed. (See
#9793.) 6/23/53 Noted.
Order to Dismiss filed.
In accordance with Order filed, this
action is marked dismissed with
prejudice.
Attest: /s/ J.A. Comey, Dep. Clerk
C22
EXHIBIT B
C23
DOCKET
DOCKET 9793
PHYLLIS BRAUNER and ELIZABETH PALYA
vs.
THE UNITED STATES OF AMERICA
Basis of Action Wrongful Death
ATTORNEYS
For Plaintiff:
Charles J. Biddle
For Defendant:
G.A. Gleeson
DATE
MONTH DAY YEAR PLAINTiFF’S ACCOUNT RECEIVED DISBURSED
June 21 1949 C.J.B. $15.00
July 15 1949 TO US. TREAS. $15.00
C24
UNITED STATES DISTRICT COURT
June 21, 1949
June 21, 1949
July 5, 1949
July 14, 1949
August 17, 1949
October 20, 1949
November 22, 1949
November 22, 1949
November 28, 1949
December 5, 1949
December 8, 1949
Complaint filed.
Summons exit.
Appearance of Gerald A. Gleeson Esq.
for defendant filed.
Summons returned June 30 - 1949
and served on Attorney General of the
United States by registered mail and
on June 22, 1949 served Gerald A.
Gleeson, Esq., United States District
Atty., and filed.
Stipulation of counsel extending time
within which to file Answer to
October 19, 1949 and Order of Court
approving same filed. Noted 8/18/
1949.
Stipulation of counsel extending time
for filing Answer to December 18 -
1949 and Order of Court approving
same filed. 10/21/49 Noted.
Answer filed.
Order to place case on trial list filed.
Plaintiffs interrogatories filed.
Stipulation of counsel extending time
for filing answers to plaintiffs’
interrogatories to December 28 -
1949 and Order of Court approving
same filed. Noted 12/6/49.
Motion for, stipulation of counsel and
Order of Court consolidating Civil
Action #10142 with this case for
trial filed. Noted 12/9/49.
December 28, 1949
January 5, 1950
January 18, 1950
January 18, 1950
January 25, 1950
February 15, 1950
June 30, 1950
July 20, 1950
August 20, 1950
September 21, 1950
October 10, 1950
C25
Stipulation of counsel extending time
for filing answers tc interrogatories to
Jan. 17, 1950 and Order of Court
approving same, filed. 12/29/49 noted.
Defendant’s answer to intertogatories
filed.
Plaintiffs’ motion for production of
documents, filed.
Order to place case on Argument List,
filed.
Motion to quash order and motion for
production of documents filed.
Hearing sur plaintiffs motion for
' production of documents and sur
defendant’s motion to quash etc.
C.A.V.
Opinion Kirkpatrick J. denying
defendant’s motion to quash and
granting plaintiffs motion to
produce filed.
Order of Court permitting plaintiff to
inspect certain documents, etc. and
staying all proceedings until,order is
complied with or vacated. Noted and
notice mailed 7/21/50.
Transcript of hearing on August 9,
1950 before Kirkpatrick, J. at
Washington, D.C. filed.
Amended Order re production and
inspection of documents, filed.
Defendant’s Petition for rehearing on
motion to quash Order and motion for
production of documents, filed.
October 10, 1950
October 10, 1950
October 12, 1950
November 27, 1950
December 11, 1950
December 18, 1950
December 18, 1950
February 20, 1951
February 27, 1951
March 2, 1951
April 20, 1951
April 20, 1951
May 29, 1951
C26
Claim of privilege by Secretary of the
Air Force, filed.
Affidavit of Judge Advocate General,
U.S. Air Force, filed.
Order of Court that facts be taken as
established, filed. 10/15/50 Noted and
Notice Mailed (#10142).
Trial (Kirkpatrick J.) Witnesses
sworn. C.A.V.
Transcript of testimony filed.
Plaintiff's Requests for findings of
fact, filed.
Plaintiff's Requests for conclusions of
law, filed.
Opinion, Kirkpatrick J. granting
judgment for plaintiff and affirming
certain of plaintiffs requests for
Findings of Fact and Conclusions of
Law filed.
Decree granting judgment in favor of
plaintiffs in the sum of $80,000 each
filed. Noted and notice maijéd 2/28/51.
Transcript of hearing of November 21,
1951 (In Chambers, K., J.) filed (See
#10142).
Notice of appeal of defendant filed
(4/23/51 Copies to Charles J. Biddle).
Copy of Clerk’s ..otice to U.S. Court of
Appeals filed.
Record transmitted to U.S. Court of
Appeals.
November 8, 1951
November 8, 1951
January 15, 1952
January 23, 1953
March 27, 1953
April 13, 1953
April 13, 1953
June 22, 1953
August 5, 1953
August 5, 1953
C27
Letter of U.S. Attorney together with
letter of Dept. of the Air Force, filed.
Supplemental record transmitted to
Court of Appeals.
Mandate affirming judgment of this
Court filed.
Certificate and the disposition of
exhibits, filed. |
Notice of taking depositions of Capt.
Herbert W. Moore, et al. filed.
Certified Copy of Order of U.S. Court
of Appeals recalling mandate, filed.
(4-14-53 Mandate returned; to U'S.
Court of Appeals).
Mandate of U.S. Supreme Court
reversing judgment of U.S. Court of
Appeals and remanding case to U.S.
District Court for further
proceedings, filed. :
Stipulation of Counsel as_ to
compromise settlerent and Order of
Court approving same, filed. 6/22/53
Noted.
Order to Dismiss filed.
In accordance with Order filed, this
action is marked dismissed with
prejudice.
Attest: /s/ J.A. Comey, Dep. Clerk
EXHIBIT C
C29
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PATRICIA J. REYNOLDS
CIVIL ACTION'NO. 10142
Vv.
UNITED STATES OF AMERICA
CLAIM OF PRIVILEGE BY THE SECRETARY
OF THE AIR FORCE
The plaintiff has filed suit against the United States for
the wrongful death of her husband, who was killed in a
military aircraft while on a confidential mission, near
Waycross, Georgia, on 6 October 1948. Counsel for the
plaintiff has applied to this court pursuant to Rule 34 of the
Federal Rules of Civil Procedure for copies of the findings of
the Board of Officers appointed to investigate the accident
pursuant to Air Force Regulation No. 62-14 and statements
of Air Force personnel witnesses.
With respect to the production of statements of
witnesses interrogated by the Board sought: by the
plaintiff's counsel, there has been no affidavit showing
good cause; nor any showing of necessity for the production
of this information. The defendant, in fact, as the affidavit of
The Judge Advocate General, United States Air Force, filed
herein, more particularly shows, has provided the iplaintiff
with certain records and with the names and known
addresses of its witnesses and now undertakes to produce
all witnesses in its employ and under its control for: pretrial
examination by the plaintiff. The names and addresses of
defendant’s witnesses were furnished in answer to the
plaintiff's interrogatories.
With regard to the demand for the production of the
Report of Investigation (Report of Major Aircraft Accident,
AF Form 14) and any other ancillary report or statement
C30
pertaining to this investigation, the respondent-defendant,
the United States, has objected and still objects to the
production of this report on the grounds that it is privileged.
The report of investigation (Report of Major Aircraft
Accident, AF Form 14), together with all the statements of
the witnesses, was prepared under regulations which are
designed to insure the disclosure of all pertinent factors
which may have caused, or w’ *h may have had a bearing
on, the accident in order that every possible safeguard may
be developed so that precautions may be taken for the
prevention of future accidents and for the purpose of
proinoting the highest degree of flying safety. These
statements are obtained in confidence, and these reports
are prepared for intra-departmental! use only, with the view
of correcting deficiencies found to have existed and with the
view of taking necessary corrective measures or additional
precautions based on the opinions and conclusions of the
Board of Officers convened to investigate such accidents.
The disclosure of statements made by witnesses and air-
crewmen before Accident Investigation Boards would have a
deterrent effect upon the much desired objective of
encouraging uninhibited statements in future inquiry
proceedings instituted primarily in the interest of flying
safety.
The defendant further objects to the production of this
report, together with the statements of witnesses, for the
reason that the aircraft in question, together with the
personnel on board, were engaged in a confidential mission
of the Air Force. The airplane likewise carried confidential
equipment on board and any disclosure of its mission or
information concerning its operation or performance would
be prejudicial to this Department and would not be in the
public interest. The furnishing of such information to
claimants or litigants against the Government is not
contemplated under the provisions of Air Force Regulation
No. 62-14, and if such information is to be released it must
be released as prescribed in Air Force Regulation No. 112-2,
paragraph 6; Air Force Regulation No. 112-2, paragraph 20;
C31
Army Regulation No. 410-5; and Army Regulation No. 420-5,
32 CFR 836.7 (by Joint Army-Air Force ' Regulation
No. 1-1-60, dated 11 May 1949, the Air Force has adopted
all pertinent Army Regulations that have: not been
superseded by Air Force Regulations).
The issue presented is solely whether reports of Boards
of Investigation and statements of witnesses which are
concerned with confidential missions and equipment of the
Air Force, declared confidential and privileged by law and
Department regulations, and which are the work-product of
the Department of the Air Force, are privileged and their
production is beyond judicial authority in this litigation.
It has been the historic position of the executive branch
of the Government, as the Attorney General of the United
States has informed this Honorable Court by statement filed
by him in Nathan Alltmont, et al, v. United States, Civil
Action No. 10019, 177 F.(2d) 971, that executive files and
investigative reports are confidential and privileged and
that their disclosure would not be in the public interest. In
that statement the Attorney General said:
“President Washington in 1796 refused to furnish the
instructions to the U.S. Minister concerning the Jay
Treaty. :
President Jefferson in . 1807 refused to furnish
confidential letters relative to the Burr conspiracy.
President Monroe in 1825 refused to furnish documents
relating to the conduct of naval officers in the Pacific.
President Jackson in 1833 refused to furnish a paper
read by him to the heads of departments relating to the
removal of bank deposits.
President Tyler in 1842 refused to furnish the names of
the Congressmen who applied for office, and in 1843
refused to furnish a War Department report on alleged
Indian frauds.
C32
President Polk in 1846 refused to furnish evidence of
payments made by the State Department on President’s
certificates. .
President Fillmore in 1852 refused to furnish
information on a proposal by the King of the Sandwich
Islands to transfer the islands to the United States.
President Lincoln in 1861 refused to furnish Major
Anderson’s dispatches relative to the defense of
Fort Sumter.
President Grant in 1876 refused to furnish information
concerning executive acts performed away from the
Capitol.
President Hayes in 1877 refused to permit the Secretary
of the Treasury to produce papers concerning the
nomination of Theodore Roosevelt as Collector of the
Port of New York.
President Cleveland in 1886 refused to produce
documents relating to suspension and removal of
Federal] Officials.
President Theodore Roosevelt in 1909 refused to
produce documents relating to the Bureau of
Corporations.
President Coolidge in 1924 refused to produce a list of
companies in which Secretary of the Treasury Mellon
was interested.
President Hoover in 1930 refused to produce the letters
leading up to the London Naval Treaty; and in 1932
refused to produce documents concerning a Treasury
Department investigation.
President Franklin D. Roosevelt in 1941 refused to
permit the Director, F.B.I., to produce F.B.I. reports; in
1943 he refused to permit the Director, Bureau of the
Budget, to produce the files and correspondence of that
Bureau relative to the transfer of the F; C. C.’s
C33 ;
functions; also refused to permit the Chairman of the
Board of War Communications and the Secretary of War
to produce their files in the matter; and in 1944 refused
to permit the Director, F. B. I., to produce reports of that
agency.
President Truman in 1947 refused to permit' the Civil
Service Commission to produce records concerning
applicants for positions; and in 1948 refused to permit
disclosure of F. B. I. reports used in the Employees
Loyalty Investigation.”
The position of the executive branch of the Government
and of this Department is restated in the opinion of
Attorney General Jackson of April 30, 1941, 40 Op. Atty.
Gen. No. 8. That opinion pointed to the following injurious
results: (1) disclosure would seriously prejudice law
enforcement; (2) disclosure would prejudice the national
defense; (3) disclosure would seriously prejudice the future
usefulness of the Federal Bureau of Investigation for
keeping of faith with confidential informants is an
indispensable condition of future efficiency; ‘and (4)
disclosure might also result in the grossest kind of
injustice to innocent individuals because the, reports
include leads and suspicions and sometimes even the
statements of malicious or misinformed people.
This position is historically approved and authorized by
authority of R.S. 161, 5 U.S.C. 22, and Air Force Regulations
issued pursuant thereto, including Air Force Regulations
Nos. 205-1, 112-2, 62-14, and Army Regulations Nos. 410-5
(Sections III and IV) and 420-5 (by Joint Army-Air Force
Regulation No. 1-11-60 and Air Force Regulation No. 5-9,
dated 11 May 1949, the Air Force has adopted all pertinent
Army Regulations that have not been superseded by Air
Force Regulations). It may therefore be seen, the position
taken by the Air Force in respect to the production of the
documents in question has been affirmed time and time
again by the courts: Boske v. Comingore, 177 U.S. 459
(1900); Totten v. United States, 92 U.S. 105 (1875); Ex parte
C34
Sackett, ¥.(2d) 922 (C.C.A. 9th, 1935); United States v.
Potts, 5. » Supp. 204 (M.D. Pa., 1944); United States v.
Haugen, 58 F.Supp. 436 (E.D. Wash., 1944); U.S. ex rel
Bayarsky v. Brooks, 51 F.Supp. 974 (D.N.J., 1943); Harwood
v. McMurtry, 22 F.Supp. 572 (W.D. Ky., 1938); Federal Life
Ins. Co. v. Tolod, 30 F.Supp. 713 (M.D. Pa., 1940); Walling as
W. & H. Adm. v. Comet Carriers, 3 F.R.D. 442 (S.D.N.Y.,
1944); Young v. Terminal Ry., 70 F.Supp. 106 (E.D. Mo.,
1947); see In re Lamberton, 124 F. 446 (W.D. Ark., 1903);
Stegall v. Thurman, 175 F. 813 (N.D. Ga., 1910); Brent v.
Hagner, 5 @ranch. C.C. 71, Fed. Cas. No. 1,839 (C.C.D.C.,
1836); (1853) 6 Op. Atty. Gen. 7; (1877) 15 Op. Atty. Gen.
342; (1905) 25 Op. Atty. Gen. 326; (1941) 40 Op. Atty. Gen.
No. 8.
For the reasons stated above, I consider that the
compulsory production of the Reports of Investigation
conducted by the Board of Officers convened under the
provisions of Air Force Regulation No. 62-14 and other
pertinent regulations in connection with aircraft accidents
is prejudicial to the efficient operation of the Department of
the Air Force, is not in the public interest, and is
inconsistent with national security. Accordingly, pursuant
to the authority vested in me as the head of the Department
of the Air Force, I assert the privileged status of reports here
involved and must respectfully decline to permit their
production.
/s/ THOMAS K. FINLETTER
THOMAS K. FINLETTER,
Secretary of the Air Force
C35
EXHIBIT D
C36
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PATRICIA J. REYNOLDS )
v. ) Civil Action No. 10142
UNITED STATES OF AMERICA )
AFFIDAVIT OF THE JUDGE ADVOCATE GENERAL,
UNITED STATES AIR FORCE
REGINALD C. HARMON, Major General, USAF, Serial
Number 721A, The Judge Advocate General, United States
Air Force, who being first duly sworn, deposes and says:
THAT as The Judge Advocate General, United States
Air Force, he is responsible for the furnishing of material
and the appearance of witnesses from among the military
personnel of the United States Air Force in all matters
where the United States Air Force is interested and in
particular the above-styled suit,
THAT the following personnel of the Air Force are the
only surviving military witnesses to the aircraft accident
that occurred on October 6, 1948, approximately two miles
south of Waycross, Georgia, in which aircraft type TB-29
(Serial Number 45-21866) was completely destroyed, and in
which plaintiffs’ decedents were killed:
Captain Herbert W. Moore, 1279A,
Tyndall Air Force Base, Florida,
Staff Sergeant Walter J. Peny, AF 6980255,
Chatham Air Force Base, Florida,
Technical Sergeant Earl W. Murrhee, AF 14171471,
MacDiil Air Force Base, Florida,
THAT the aforementioned three witnesses will be made
available at the expense of the United States for
C37
interrogation by the plaintiffs at a place and time to be
designated by the plaintiffs,
THAT these witnesses will be authorized to testify
regarding all matters pertaining to the cause of the accident
except as to facts and matters of a classified nature,
THAT these witnesses will be authorized to refresh
their memories by reference to any statements made by
them before Aircraft Accident Investigating Boards or
Investigating Officers, as well as other pertinent and
material records that are in the possession of the United
States Air Force,
THAT upon demand by the plaintiffs all records, other
than those which have been classified or determined to be
privileged, have already been made available by the Air
Force, .
THAT such information and findings of the Accident
investigation Board and statements which have been
demanded by the plaintiffs cannot be furnished! without
seriously hampering national security, flying safety and the
development of highly technical and secret military
. equipment,
AND THAT the disclosure of statements made by
_ witnesses before Accident Investigation Boards would have
a deterrent effect upon the much desired objective of
encouraging uninhibited admissions in future inquiry
proceedings instituted primarily in the interest of flying
safety.
/s/ REGINALD C. HARMON
REGINALD C. HARMON,
Major General, USAF
Subscribed and sworn to before me this seventh day of
August, 1950.
/s/ J. xxxxxx Will
J. xxxxxx Will
Notary Public Arlington County, Virginia
My Commission Expires December '3, 1950
C38
EXHIBIT E
C39
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHYLLIS BRAUNER and
ELIZABETH PALYA
Vv. : Civil Action No. 9793
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