DEFENDANT’S RESPONSE TO PLAINTIFF’S MARCH 9, 2015 FILING ON RULE 60 DISCOVERY

IN THE UNITED STATES COURT OF FEDERAL CLAIMS JAY ANTHONY DOBYNS,) ) Plaintiff,) ) v.)No. 08-700C )(Special Master Facciola) THE UNITED STATES,) )FILED UNDER SEAL Defendant.) DEFENDANTS RESPONSE TO PLAINTIFFS MARCH 9, 2015 FILING ON RULE 60 DISCOVERY March 13, 2015 BENJAMIN C. MIZER Acting Assistant Attorney General ROBERT E. KIRSCHMAN, JR. Director Commercial Litigation Branch Civil Division Department of Justice Ben Franklin Station P.O. Box 480 Washington, D.C. 20044 Tel:(202) 616-0328 Fax:(202) 514-8624 Attorneys for Defendant Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 1 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 1 of 54i TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii BACKGROUND ............................................................................................................................ 2 I.Factual History ........................................................................................................ 2 II.Procedural History Of The Court Of Federal Claims Case .................................... 3 A.Initial Pleadings And Discovery ................................................................. 3 B.The Courts August 28, 2014 Judgment ..................................................... 4 C.The Courts September 17, 2014 Order Regarding The Voicemail Message From Mr. Trainor ......................................................................... 6 D.The United States Appeal And The Trial Courts Subsequent Actions ........................................................................................................ 6 DISCUSSION ................................................................................................................................. 8 I.Standards For Relief Under Rule 60(d)(3) And Rule 60(b)(3) ............................... 9 II.Plaintiff Cannot Meet The Rule 60 Causation Requirements ............................... 12 A.The Alleged Threats To Mr. Trainor ........................................................ 15 B.Bacon Allegations ..................................................................................... 17 1.Alleged Pressure From ATF Attorney Ms. Bacon To Not Re-Open ATFs Arson Investigation Related To Plaintiffs Home ............................................................................................. 17 2.Mr. Harringtons Alleged Knowingly False Assertion To The Court Regarding Ms. Bacons Purported Statement.............. 19 C.The Alleged Failure Of Mr. Kiffner And Ms. Bouman To ProduceAudio Recordings ..................................................................................... 20 D.The Alleged Failure Of DOJ Attorneys To Discourage Or CorrectPerjury Of Mr. Gillett And Mr. Higman At Trial ..................................... 21 E.Allegations That Mr. Kiffner And Ms. Bouman Failed To Cure Or Suborned Deposition Perjury By Three ATF Witnesses .......................... 23 F.Mr. Harringtons Allegedly False Representations Regarding TwoROIs And Wrongful Withholding Of Them ............................................. 24 G.Alleged Refusal Of Deputy Director Brandon To Sign PRB Recommendations ..................................................................................... 25 H.The Issuance Of Three PRB Letters Of Clearance Before Trial .............. 26 I.The Alleged Coaching Of Mr. Carter Through His Cell Phone ............... 27 III.Discovery Should Be Denied Because Plaintiff Has Not Raised A Colorable Claim Of Fraud .................................................................................... 29 Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 2 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 2 of 54ii A.The Available Facts Show There Is No Colorable Claim Of Fraud ......... 29 1.The Alleged Threats To Mr. Trainor ............................................ 29 2.Bacon Allegations ......................................................................... 32 i.Alleged Pressure From Ms. Bacon To Not Re-Open ATFs Arson Investigation Related To Plaintiffs Home ....... 32 ii.Mr. Harringtons Alleged Knowingly False Assertion To The Court Regarding Ms. Bacons Purported Statement ................................................................................. 35 3.The Alleged Failure Of Mr. Kiffner And Ms. Bouman ToProduce Audio Recordings ........................................................... 36 4.The Alleged Failure Of DOJ Attorneys To Discourage OrCorrect Perjury Of Mr. Gillett And Mr. Higman At Trial ............ 38 5.Allegations That Mr. Kiffner And Ms. Bouman Failed To Cure Or Suborned Deposition Perjury By Three ATF Witnesses ...................................................................................... 39 6.Mr. Harringtons Allegedly False Representations Regarding Two ROIs And Wrongful Withholding Of Them ....... 39 7.Alleged Refusal Of Deputy Director Brandon To Sign PRB Recommendations ......................................................................... 41 8.The Issuance Of Three PRB Letters Of Clearance Before Trial ............................................................................................... 42 9.The Alleged Coaching Of Mr. Carter Through His Cell Phone............................................................................................. 42 B.Plaintiff Cannot Demonstrate Extraordinary Circumstances Required To Permit Deposition Of High Ranking DOJ Officials ............ 44 C.If The Special Master Does Permit Discovery, The Scope Should Be Limited To Appropriately Safeguard The Attorney-Client Privilege And Attorney Work Product Protection .................................... 45 CONCLUSION ............................................................................................................................. 48 Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 3 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 3 of 54iii TABLE OF AUTHORITIES CASES Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir. 1988) ......................................................................................... 10, 12, 24 Anderson v. New York, No. 07 Civ. 9599(SAS), 2012 WL 4513410 (S.D.N.Y. Oct. 2, 2012) ........................... 9, 11, 13 Apotex Corp. v. Merck & Co., Inc., 507 F.3d 1357 (Fed. Cir. 2007).............................................................................................. 9-10 Baltia Air Lines, Inc. v. Transaction Mgmt., Inc., 98 F.3d 640 (D.C. Cir. 1996) ........................................................................................ 11, 13, 14 Broyhill Furniture Indus., Inc. v. Craftmaster Furtniture Corp., 12 F.3d 1080 (Fed. Cir. 1993)............................................................................................... 9, 11 CEATS, Inc. v. Continental Airlines, Inc., 755 F.3d 1356 (Fed. Cir. 2014)................................................................................................. 10 Clark v. United States, 289 U.S. 1 (1933) ................................................................................................................. 46-47 Council v. AFGE Union, 559 F. App'x 870 (11th Cir. 2014) .................................................................................. 9, 10, 22 Davis v. U.S. Dept. of Health & Human Servs., 968 F. Supp. 2d 176 (D.C. Cir. 2013) ....................................................................................... 11 Dobyns v. United States, 118 Fed. Cl. 289 (2014) ..................................................................................................... passim Dobyns v. United States, 91 Fed. Cl. 412 (2010) ................................................................................................................ 3 Eden Isle Marina, Inc. v. United States, 89 Fed. Cl. 480 (2009) .............................................................................................................. 46 Harduvel v. Gen. Dynamics Corp., 801 F. Supp. 597 (M.D. Fla. 1992) ........................................................................................... 24 Hildebrand v. Steck Mfg. Co., Inc., 292 F. App'x 921 (Fed. Cir. 2008) ............................................................................................ 10 Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 4 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 4 of 54iv In re Cheney, 544 F.3d 311 (D.C. Cir. 2008) .................................................................................................. 44 In re EchoStar Commcns. Corp., 448 F.3d 1294 (Fed. Cir. 2006)................................................................................................. 46 In re Sealed Case, 754 F.2d 395 (D.C. Cir. 1985) .................................................................................................. 47 Irving v. Town of Camden, No. 12-1850, 2013 WL 7137518 (1st Cir. Apr. 17, 2013) ................................................... 9, 11 Jicarilla Apache Nation v. United States, 88 Fed. Cl. 1 (2009) .................................................................................................................. 46 Johnson v. Maddox, No.Civ.A. 00-2743, 2005 WL 2318075 (D.D.C. Sept. 22, 2005) ............................................ 22 Midwest Franchise Corp. v. Metromedia Rest. Grp., Inc., 177 F.R.D. 438 (N.D. Iowa 1997) ............................................................................................ 12 NEC Corp. v. United States, 151 F.3d 1361 (Fed. Cir. 1998)................................................................................................. 44 Ramirez v. Dept of Justice, 680 F. Supp. 2d 208 (D.D.C. 2010) .......................................................................................... 29 Roger Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d 129 (1st Cir. 2005) ..................................................................................................... 12 Schultz v. Butcher, 24 F.3d 626 (4th Cir. 1994) ...................................................................................................... 10 Sellers v. Mineta, 350 F.3d 706 (8th Cir. 2003) .................................................................................................... 10 Stan Lee Media, Inc. v. Conan Sales Co. LLC, 546 F. App'x 725 (9th Cir. 2013) .................................................................................... 9, 11, 12 Walsh v. Hagee, 10 F. Supp. 3d 15 (D.D.C. 2013) .............................................................................................. 29 White v. Fox, 576 F. App'x 327 (5th Cir. 2014) .............................................................................................. 22 Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 5 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 5 of 54v White v. Natl Football League, No. 92-906(MJD), 2015 WL 501973 (D. Minn. Feb. 5, 2015) .......................................... 12, 29 RULES FRE 615 ........................................................................................................................................ 31 RCFC 26(b) ................................................................................................................................... 46 Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 6 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 6 of 54IN THE UNITED STATES COURT OF FEDERAL CLAIMS JAY ANTHONY DOBYNS,) ) Plaintiff,) ) v.)No. 08-700C )(Special Master Facciola) THE UNITED STATES,) )FILED UNDER SEAL Defendant.) DEFENDANTS RESPONSE TO PLAINTIFFS MARCH 9, 2015 FILING ON RULE 60 DISCOVERY On February 23, 2015, the Court entered an order instructing the Special Master to make findings to assist the Court in determining whether defendants attorneys, in the conduct of this case, effectuated a fraud upon the court under RCFC 60(d)(3), and to further consider, as necessary, whether there are other grounds for relief from the final judgment under RCFC 60, including the existence of fraud (whether previously called intrinsic or extrinsic),misrepresentation, or misconduct by an opposing party under RCFC 60(b)(3).Dkt. No. 335.On March 4, 2015, the Special Master ordered that plaintiff, Jay Anthony Dobyns, file a summary of the issues to be addressed in this inquiry.Dkt. No. 336.Plaintiff filed a response on March 9, asking the Special Master to begin a wide-ranging inquiry that has no relation to the validity of the judgment that was entered in favor of plaintiff.In an effort to assist the Special Master in understanding the facts that have already been developed regarding the issues identified by plaintiff, and to set forth the relevant legal authority, defendant, the United States, provides this response to plaintiffs filing.The legal authority and factual evidence set forth below show that there is no merit to plaintiffs Rule 60 motion, and it should thus be denied.Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 7 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 7 of 542 They further show that, because plaintiffs allegations have no merit, the disposition of this remand can be handled efficiently, without the need for the discovery proposed by plaintiff. Despite the fact that discovery is anything but automatic under Rule 60, particularly when, as here, plaintiff has neither presented a colorable claim of fraud that impacted the judgment nor demonstrated circumstances that justify any discovery, plaintiff requests that the Special Master permit him the extraordinary remedy of taking, among other things, 29 post-trial depositions, including depositions of the Attorney General of the United States, the former Deputy Attorney General of the United States, the Acting Associate Attorney General, the Director of the Bureau of Alcohol, Tobacco, and Firearms (ATF); a United States Attorney, the former Director of the National Courts Section of the Civil Division, a Deputy Director of the National Courts Section, and eight additional Department of Justice (DOJ) attorneys.The Court should not permit this fishing expedition that cannot alter the outcome of this case and is not justified by any known facts or colorable claim of fraud. BACKGROUND I.Factual History Plaintiff is a now-retired ATF agent.His breach of contract claim arose out of an employment settlement agreement executed between him and ATF on September 20, 2007.ATF intended that the settlement agreement would resolve a variety of employment disputes that plaintiff had with ATF.The agreement, however, did not resolve ATFs disputes with plaintiff.Instead, he soon claimed that ATF breached the settlement agreement by withdrawing his fictitious identification documents in late 2007, by conducting an incompetent investigation of a fire that occurred at his house in August 2008, and by failing to properly handle an alleged threat that ATF learned about in October 2008.He filed an initial complaint in the Court of Federal Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 8 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 8 of 543 Claims in 2008, and a second amended complaint in May 2009.Ultimately, plaintiff provided evidence related to only emotional distress damages for ATFs alleged breach of contract.The United States asserted a counterclaim against plaintiff.In the settlement agreement, he had agreed that he would comply with Agency requirements and will seek permission for any outside employment, including speaking, writing, teaching or consulting.The United States alleged that he breached this provision when, in violation of ATF regulations, he failed to submit the manuscript for his book, entitled No Angel, My Harrowing Undercover Journey to the Inner Circle of the Hells Angels, to ATF for review before its publication in February 2009. II.Procedural History Of The Court Of Federal Claims Case A.Initial Pleadings And Discovery On October 2, 2008, plaintiff initiated suit in the Court of Federal Claims.The United States filed a motion to dismiss the complaint (Dkt. No. 7) and, in response, plaintiff twice amended his complaint.Plaintiffs second amended complaint sought emotional, financial, and other damages allegedly arising from breach of the 2007 settlement agreement.Dkt. No. 17.Following the second amendment of the complaint, the Court deemed the Governments motion to dismiss renewed (Dkt. No. 20) and granted the motion in part on January 15, 2010.Dobyns v. United States, 91 Fed. Cl. 412 (2010).The United States subsequently answered the complaint and filed its counterclaim.Plaintiff answered the counterclaim and, on March 29, 2010, the Court issued a scheduling order for the conduct of discovery.Dkt. Nos. 43, 44. Following discovery, from January 2012 to March 2012, the parties filed cross-motions for summary judgment.See Dkt. Nos. 76, 78, 80, 83, 84, 85, 86.On October 1, 2012, the Court denied both parties motions for summary judgment.Between the time that the United States filed its summary judgment briefs and the hearing on the motions, Senior Trial Counsel David Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 9 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 9 of 544 Harrington entered his appearance as attorney of record for the United States.On November 11, 2012, the Court issued a pretrial order setting forth the schedule for conducting trial preparations.Dkt. No. 102.From the time he became lead trial counsel on the case on April 5, 2012, until approximately June 2013, Mr. Harrington received more than 400 single-spaced, often lengthy and rambling e-mails from plaintiffs counsel regarding this case, many complaining about the perceived misconduct by the Government in nearly every aspect of litigation.See Dkt. No. 199 at 3; Dkt. No. 337-1 at 5-15, 20-22.Supervisors in the Civil Division also received literally hundreds of lengthy e-mail communications making allegations of improprieties, a small sliver of which plaintiff attached to his pleadings.See Dkt. No. 337-1 at 5-15, 20-22. The Court conducted the first part of the trial in Tucson, Arizona, from June 10, 2013, to June 21, 2013.Dkt. No. 191.The trial continued in Washington, D.C., from July 22, 2013, to July 26, 2013.See Dkt. No. 207.The parties submitted post-trial briefing and, on February 18, 2014, the Court heard post-trial oral argument.Dkt. No. 281. B.The Courts August 28, 2014 Judgment On August 28, 2014, the Court entered judgment for plaintiff in the amount of $173,000.In a sealed August 25, 2014 opinion, Judge Francis M. Allegra found that, although the Government did not breach the express terms of the 2007 settlement agreement, and specifically did not breach paragraph 10 of the agreement in which the agency agreed to comply with all laws regarding or otherwise affecting plaintiffs employment with ATF, it nevertheless violated an implied covenant of good faith and fair dealing between plaintiff and ATF.1Dobyns v. United 1Beyond finding no breach of the express terms of the settlement agreement, the Court also did not find any violation of a statutory obligation by ATF. Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 10 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 10 of 545 States, 118 Fed. Cl. 289, 313 (2014) (public version) (summarizing that there was a failure of some ATF officials to abide with the spirit of [the] contract). Finding ATF liable on this basis, the Court then used the jury verdict method to award $173,000 in emotional distress damages.Id. at 325.This constituted an award of 100 percent of the portion of the $373,000 settlement amount that the Court attributed to non-economic damages.The Court explained that the award compensated plaintiff for the emotional distress he purportedly suffered during the two years that ATF allegedly breach its implied covenant of good faith and fair dealing related to the settlement agreement: Various testimony also suggests that about $173,000 of the $373,000, represented the approximate amount that Agent Dobyns believed he was entitled to receive in terms of non-damages such as mental distress, as well as pain and suffering.In the courts view, this leads, by extension, to the conclusion that, under the jury verdict method, plaintiff is entitled to receive $173,000 approximating the emotional distress, as well as pain and suffering, that Agent Dobyns experienced in the period (approximately two years) while the covenant of good faith and fair dealing was being breached. Id. at 325-26.The Court determined that the remaining portion of the $373,000 settlement amount $200,000 was compensation for economic damages.Id. at 322.The Court determined that plaintiff had failed to prove any economic damages because plaintiff failed to provide[] any degree of detail regarding the economic damages he [sought].Id.The Court concluded that plaintiff was entitled to no recovery of economic damages.Id.The Court also denied the Governments counterclaim, concluding that it suffered from numerous factual and legal flaws.Id. at 327-30. Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 11 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 11 of 546 C.The Courts September 17, 2014 Order Regarding The Voicemail Message From Mr. Trainor On September 17, 2014, the Court issued a sealed order in which it notified the parties that Judge Allegra had received what he termed an ex parte communication on September 16, 2014, which he had forwarded to Deputy Attorney General James Cole for investigation.Dkt. No. 296.The subject communication was a voicemail message left for Judge Allegra by ATF Supervisory Special Agent Christopher Trainor, who twice testified during the Dobyns trial.In the voicemail message, Mr. Trainor stated that he wished to discuss potential attorney misconduct on the part of the DOJ attorneys. D.The United States Appeal And The Trial Courts Subsequent Actions On October 24, 2014, the United States filed a notice of appeal in the United States Court of Appeals for the Federal Circuit, to challenge the Courts August 28 judgment.2On October 29, 2014, the Federal Circuit docketed the United States appeal and plaintiffs cross-appeal.On the same day, the trial court issued a sealed order in which it attempted to void the August 28, 2014 judgment.The order stated, in pertinent part:. . . the court hereby VOIDS the prior judgment based upon indications that defendant [United States], through its counsel, has committed fraud on the court . . . . The court will issue appropriate orders establishing a schedule for further proceedings in this matter.Dkt. No. 300 (emphasis in original). The United States responded to the Courts October 29 order with a motion to vacate the order.The Government argued that the Court did not possess jurisdiction to void the August 28 judgment because, among other things, the case was already on appeal at the Federal Circuit, thus divesting the Court of jurisdiction.On November 13, 2014, the Court granted the United 2Plaintiff subsequently noticed a cross-appeal. Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 12 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 12 of 547 States motion to vacate its October 29 order.Dkt. No. 308.The next day, however, the Court after noting that neither party had filed a motion to set aside the August 28, 2014 judgment asked the parties to clarify whether they intended to do so, by filing a motion seeking relief from the judgment under Rule 60 using the Courts indicative ruling procedures.Despite the fact that the Court had awarded him $173,000 in the judgment, plaintiff filed such a motion on November 19, 2014, asserting a litany of unfounded allegations related largely to stale discovery disputes.Dkt. No. 313.The only new allegations contained in this Rule 60 motion were allegations related to Mr. Trainors September 16 voicemail message to the Court.As explained in detail below, none of these allegations have any bearing on thejudgment. The United States opposed plaintiffs Rule 60 motion, explaining that Rule 60(b)(3) requires that fraud be proven by clear and convincing evidence, not be discoverable by due diligence before or during the proceeding, and be materially related to the submitted issue.Dkt. No. 315.Without addressing any of these legal precepts, the Court issued an indicative ruling pursuant to RCFC 62.1 stating that it would, if given the opportunity by the Federal Circuit, conduct proceedings to consider whether defendants counsel has committed fraud on the court.Dkt. No. 316.The Court identified two instances of conduct by defendants counsel that, in the courts view, provide indication that fraud on the court has occurred here.Dkt. No. 316 at 4.The Court did not indicate that it felt that any of the other stale allegations relied upon by plaintiff in his motion indicated the presence of fraud.Id.Both of the instances, identified by the Court, addressed below, concern the alleged non-disclosure of information that was immaterial to the breach of contract claim and the resulting judgment. On December 18, 2014, the Federal Circuit remanded the case to the Court for the purposes of allowing that court to consider the motion, but otherwise retained jurisdiction.Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 13 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 13 of 548 DISCUSSION This has been a very difficult and contentious litigation.Throughout discovery and trial, plaintiff lodged allegations of misconduct by a wide range of individuals employed by both ATF and the DOJs Civil Division.Plaintiffs allegations came in frequent e-mail correspondence, often speculating about a sizeable conspiracy within the Government with respect to this litigation.There were literally hundreds of such e-mail communications during the pendency of this case.But the reality is that nearly all of the issues all but one were fully aired before the Court prior to or during trial, which precludes a Rule 60 remedy.Indeed, in almost every instance cited by plaintiff, the Court found favorably for plaintiff on the factual or discovery dispute at issue, and a Rule 60 remedy for plaintiff relief from a judgment in his favor makes no sense.Those issues were well ventilated and do not permit further inquiry here, given the purpose of Rule 60 and the limitations built into it.Moreover, the issues plaintiff raises go well beyond the issues identified by the Court as raising concerns.The Special Master can provide detailed factual findings and legal determinations based on the established facts set forth below, without the need for the discovery proposed by plaintiff. In sum, the Special Master can and should make a recommendation as to the resolution of plaintiffs motion without the need for the discovery proposed by plaintiff.Importantly, to the extent general allegations of attorney misconduct have been made that did not impact the judgment in plaintiffs favor, there is a forum for consideration of those claims such as the DOJ Office of Professional Responsibility, which has a pending inquiry into the matter that is on hold awaiting the conclusion of these proceedings.But this proceeding is limited to applying the standards of Rule 60 and cannot serve as a general inquiry into alleged attorney misconduct that did not impact the judgment which is already in plaintiffs favor. Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 14 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 14 of 549 Finally, even if the Court were inclined to consider the facts of plaintiffs wide-ranging allegations, the record adequately shows that there was no misconduct here and further factual development is not warranted. I.Standards For Relief Under Rule 60(d)(3) And Rule 60(b)(3) The requirements for relief under Rule 60(d)(3) are stringent and narrow.Anderson v. New York, No. 07 Civ. 9599(SAS), 2012 WL 4513410, at *4 (S.D.N.Y. Oct. 2, 2012).Allegations of fraud on 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.Id.; Council v. AFGE Union, 559 F. Appx 870, 873 (11th Cir. 2014) (quoting Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985)).A finding of fraud on the Court under Rule 60(d)(3) thus requires an unconscionable scheme or the most egregious conduct designed to corrupt the judicial process.Irving v. Town of Camden, No. 121850, 2013 WL 7137518, at *1 (1st Cir. Apr. 17, 2013) (quoting Roger Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d 129, 133 (1st Cir. 2005)); Stan Lee Media, Inc. v. Conan Sales Co. LLC, 546 F. Appx 725, 728 (9th Cir. 2013) (quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960)).Fraud upon the court is thus typically confined to the most egregious cases, such as bribery of a judge or juror, or improper influence exerted on the court by an attorney, in which the integrity of the court and its ability to function impartially is directly impinged.Broyhill Furniture Indus., Inc. v. Craftmaster Furtniture Corp., 12 F.3d 1080, 1085-86 (Fed. Cir. 1993) (quoting Great Coastal Express, Inc. v. Intl Bhd. of Teamsters, 675 F.2d 1349, 1356 (4th Cir. 1982)).As the Federal Circuit has emphasized, [f]raud upon the court requires that there was a material subversion of the legal process . . . [and] requires rigorous proof, as do other challenges to final judgment, lest Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 15 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 15 of 5410 the finality established by Rule 60(b) be overwhelmed by continuing attacks on the judgment.Apotex Corp. v. Merck & Co., Inc., 507 F.3d 1357, 1360-61 (Fed. Cir. 2007). Fraud upon the court must be established by clear and convincing evidence.Council, 559 F. Appx at 872 (citing Cox Nuclear Pharm., Inc. v. CTI, Inc., 478 F.3d 1303, 1314 (11th Cir. 2007)).The elements of fraud under Rule 60(b)(3) are similar to the standards set under Rule 60(d)(3).E.g., CEATS, Inc. v. Continental Airlines, Inc., 755 F.3d 1356, 1360 (Fed. Cir. 2014)(the party seeking relief under Rule 60(b)(3) must prove by clear and convincing evidence [] that the adverse party engaged in fraud or other misconduct . . .) (quoting Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir. 2005)) (other citations omitted); Hildebrand v. Steck Mfg. Co., Inc., 292 F. Appx 921, 925 (Fed. Cir. 2008) ( [a] party seeking to rely on Rule 60(b)(3) must produce clear and convincing proof of fraud.) (citing Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1290 (10th Cir. 2005)). An additional requirement, of particular importance here, is that the fraud alleged to warrant the granting of a motion under Rule 60(b)(3) or Rule 60(d)(3) must have had a dramatically adverse impact on the moving party.[T]he party seeking relief under Rule 60(b)(3) must prove by clear and convincing evidence . . . that [the non-moving partys] misconduct prevented the moving party from fully and fairly presenting his case.CEATS, Inc., 755 F.3d at 1360-61 (quoting Hesling, 396 F.3d at 641); Schultz v. Butcher, 24 F.3d 626, 630 (4th Cir. 1994) (same); Sellers v. Mineta, 350 F.3d 706, 715 (8th Cir. 2003) (same).To meet this requirement, the asserted misconduct must substantially have interfered with the aggrieved partys ability fully and fairly to prepare for and proceed [to judgment].Anderson v. Cryovac, Inc., 862 F.2d 910, 924 (1st Cir. 1988) (emphasis in original).Thus, in CEATS, Inc., where the party moving under Rule 60(b)(3) conceded that there is nothing in the record that shows it was Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 16 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 16 of 5411 not given a full and fair opportunity to present its case[,] the Federal Circuit affirmed the district courts denial of the plaintiffs Rule 60(b)(3) motion.755 F.3d at 1361.Similarly, in Baltia Air Lines, Inc. v. Transaction Management, Inc., 98 F.3d 640, 643 (D.C. Cir. 1996), the United States Court of Appeals for the District of Columbia, in affirming the district courts denial of plaintiffs Rule 60(b) motion, emphasized that fraud on the court must have materially affected the outcome of the litigation:It is particularly noteworthy . . . that any misrepresentations to the District Court were not relevant to the courts decision to confirm the arbitration award. Consistent with these standards, allegations that are based on the non-disclosure of information are generally insufficient to support a claim of fraud on the court.Stan Lee Media, 546 F. Appx at 728 (citing Appling v. State Farm Mut. Auto Ins. Co., 340 F.3d 769, 780 (9th Cir. 2003)); see Broyhill Furniture, 12 F.3d at 1087 (it is much more convincing to find fraud on the court in falsely fabricating an article presented in court than it is to draw a similar conclusion from a failure to disclose material prior art to the PTO.); Davis v. U.S. Dept. of Health & Human Servs., 968 F. Supp. 2d 176, 184 (D.C. Cir. 2013) (fraudulent documents, false statements, and perjury, all of which are categorically similar to the nondisclosure of relevant information because they affect a courts view of the evidence, do not generally constitute fraud on the court.).Significantly, the fraud, misrepresentation or conduct must have actually deceived the court.If a courts judgment was not influenced by the conduct at issue, the judgment should not be set aside.Anderson, 2012 WL 4513410, at *4 (quoting In re Old Carco LLC, 423 B.R. 40, 52 (Bankr. S.D.N.Y. 2010)).If an alleged fraud on a court is brought to the courts attention well before its dispositive ruling, Rule 60(d)(3) is inapplicable.Irving, 2013 WL 7137518, at *1. Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 17 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 17 of 5412 Rule 60 does not provide for discovery.The courts have, however, occasionally exercised the discretion to allow a party to pursue post-judgment discovery when the moving party can make a prima facie demonstration of success on the merits or, alternatively, a colorable claim.See, e.g., White v. Natl Football League, No. 92906(MJD), 2015 WL 501973, at *2 (D. Minn. Feb. 5, 2015) (citing Pearson v. First NH Mortg. Corp., 200 F.3d 30, 35 (1st Cir. 1999); Midwest Franchise Corp. v. Metromedia Rest. Grp., Inc., 177 F.R.D. 438, 440 (N.D. Iowa 1997)). Discovery is not automatic under Rule 60, nor should it be.Even if a party demonstrates a colorable claim of fraud, it is not automatically entitled to discovery.A court should still exercise its discretion to determine whether discovery is appropriate in the circumstances.Stan Lee Media, 546 F. Appx at 728; Roger Edwards, LLC, 427 F.3d at 137 (even with the discretion given to judges under Rule 60(b), discovery not permitted where moving party pointed to nothing in this case that could be unearthed by discovery or proved in an evidentiary hearing that would alter our analysis). II.Plaintiff Cannot Meet The Rule 60 Causation Requirements Because it is readily evident that plaintiff cannot satisfy the requirement in Rule 60(d)(3) and Rule 60(b)(3) that the alleged fraud materially adversely impacted him or the Courts judgment, we demonstrate, as an initial matter, that plaintiff fails to meet the applicable causation requirements. The facts available without discovery establish that plaintiff cannot show the adverse impact necessary to warrant the granting of a motion under Rule 60(b)(3) or Rule 60(d)(3) because the alleged misconduct did not (1) substantially interfere with plaintiffs ability to fully and fairly present his case, see Cryovac, Inc., 862 F.2d at 924; (2) influence the Courts Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 18 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 18 of 5413 judgment, see Anderson, 2012 WL 4513410, at *4; or (3) materially affect the outcome of the litigation, see Baltia Air Lines, 98 F.3d at 643.Because the available facts demonstrate that plaintiff cannot meet Rule 60s stringent causation requirements, the Court can and should deny plaintiffs motion without discovery. There is a very simple response to all but one of plaintiffs allegations given that they were raised and addressed prior to judgment in the case: With respect to the claim (Nos. 2-3 in plaintiffs list) that Bacon instruct[ed] . . . Atteberry . . . not to re-open ATFs investigation into the arson, this issue was identified at trial, factual submissions relating to it were provided to the Court during trial, and the issue was addressed in detail by the Court in its opinion. With respect to the claim (No. 4) that two audio recordings were withheld, plaintiff received those recordings prior to trial, and was able to take additional depositions based on them, as plaintiff acknowledges in his filing. With respect to the claim (No. 5-6) that certain ATF witnesses did not tell the truth on the stand, plaintiffs examination of those witnesses led the Court to discredit them, and the factual dispute was therefore resolved in plaintiffs favor at trial. With respect to the claim (Nos. 7-8) that certain Internal Affairs Reports of Investigation were improperly withheld, those reports were produced to plaintiff and were credited by the Court in ruling in plaintiffs favor. With respect to the claim that ATF letters of clearance should not have been issued (No. 9), the letters were considered by the Court and given little weight, as plaintiff acknowledges (Dkt. No. 337 at 29). Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 19 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 19 of 5414 With respect to the allegation that Mr. Carters telephone rang at trial as a secret signal to the witness (No. 10), plaintiff had the opportunity to raise this wildly speculative allegation at trial and question the witness regarding it, and indeed acknowledges that he obtained favorable testimony from Mr. Carter on the key issue relevant to his claim (Dkt. No. 337 at 33). Just one issue arose after the judgment in this case the voicemail message left by Mr. Trainor to Judge Allegra after the public release of the Courts opinion.Further inquiry into that allegation is not warranted given that, even if true, it would not have affected the Courts judgment.Nonetheless, even if a factual inquiry occurs and none should it must be limited to determining the facts surrounding that issue or some portion of that issue. In addition to the fact that the alleged misconduct did not prevent plaintiff from fully and fairly presenting his case and did not influence the Court, plaintiffs allegations of fraud fail to meet the Rule 60(d)(3) and Rule 60(b)(3) causation requirement because the alleged conduct could not have affected the outcome of the litigation. A judgment may not be set aside pursuant to Rule 60 unless the alleged misconduct materially affected the outcome of the litigation.Baltia Air Lines, Inc., 98 F.3d at 643.This requirement is fatal to plaintiffs Rule 60 motion because the available facts establish that none of the alleged misconduct could have affected the Courts judgment.Specifically, plaintiffs $173,000 damage award constituted 100 percent of the emotional distress damages that the Court concluded were imbedded in the settlement agreement.Thus, even assuming plaintiff could somehow demonstrate fraud on the part of the United States sufficient to satisfy the rigorous standards of Rule 60(d)(3) or Rule 60(b)(3) and he cannot do so he still would not be entitled to any award greater than $173,000.This is because such a demonstration would in no way Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 20 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 20 of 5415 affect the Courts conclusion that, given his failure of proof on economic damages, plaintiff is entitled to no recovery of economic damages.Dobyns, 118 Fed. Cl. at 322.Because the Court concluded that plaintiff is not entitled to economic damages, $173,000 is the maximum award he may recover for the Governments breach.Importantly, plaintiff makes almost no attempt to link any of his allegations to the award he received at trial, and the reason is that there is no link to make these claims suitable to the resolution in a Rule 60 proceeding. A.The Alleged Threats To Mr. Trainor Plaintiffs allegations related to the purported threat from former ATF Agent Charles Higman to Mr. Trainor (Dkt. No. 337 at 10-14) neither prevented plaintiff from fully presenting his case, nor influenced the Court.The Court has cited Mr. Trainors allegations as the primary basis to consider plaintiffs Rule 60 motion.E.g., Dkt. No. 316.This is understandable as these allegations constitute the only matter about which plaintiff and the Court had not been fully aware before the Courts judgment.Nevertheless, and as explained below, Mr. Trainors allegations (which are unfounded) do not support a motion under Rule 60. The alleged threat from Mr. Higman to Mr. Trainor did not interfere with plaintiffs ability to fully and fairly present its case, nor did it influence the Court.See Appendix (App.) 76 (e-mail from Mr. Trainor to Gregory Plott, with transcription of Mr. Higmans June 28, 2013 voicemail message); 77-81 (informal transcription of July 2, 2013 phone conversation between Mr. Trainor and Mr. Higman).3Both Mr. Higman and Mr. Trainor had concluded their testimony about the ATF fire investigation before Mr. Higman left his voicemail message.That 3The parties can provide copies to the Special Master of the audio recordings of (1) Mr. Higmans June 28, 2013 voicemail message to Mr. Trainor; and (2) the July 2, 2013 recorded conversation between Mr. Trainor and Mr. Higman.Until then, we have provided informal transcriptions of the relevant recordings only to assist the Special Master. Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 21 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 21 of 5416 testimony therefore could not have been affected by the alleged threat.Mr. Trainors testimony during the second phase of trial concerned a discrete subject, his ROI on the withdrawal of plaintiffs fictitious credentials a matter that was not discussed by Mr. Trainor and Mr. Higman.In addition, Mr. Trainor was not a percipient witness, and, as the Court itself found, his after-the-fact investigations merely corroborat[ed] . . . facts that are otherwise reflected by the testimony and documents in the record.Dobyns, 118 Fed. Cl. at 312.Finally, Mr. Trainors testimony, and the ROIs he authored, were credited by the Court in entering its judgment in favor of plaintiff.Id.Mr. Higmans testimony, on the other hand, was not credited.Id. at 311-12. The absence of any effect on plaintiffs ability to litigate his case is plain:Mr. Trainor was called by plaintiff to testify on the ROIs he authored and did, in fact, testify on the ROIs.The testimony plaintiffs counsel elicited from Mr. Trainor was credited by the Court.Further, the alleged threat by DOJ attorneys to Mr. Trainor, even if substantiated (and, again, there was no threat), did not deceive the Court, as necessary to set aside a judgment under Rule 60.The Court, in deciding plaintiffs Rule 60 motion, must determine whether the alleged threat, if substantiated, resulted in the Court being improperly influenced or deceived.The available facts demonstrate that is not the case.Nor did the alleged threats affect the Courts judgment.As noted above, the Court credited the testimony of Mr. Trainor and found that Mr. Higman was not credible.Even if the Court were to accept, for the purpose of plaintiffs Rule 60 motion, that an attorney threatened Mr. Trainors career if he disclosed the purported threat made by Mr. Higman (which we vigorously dispute), neither the Courts judgment, nor the amount of that judgment, would be affected.Mr. Trainors testimony was not relevant to the Courts determination that ATF did not breach the express terms of the settlement agreement or the availability of economic damages, Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 22 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 22 of 5417 and plaintiff makes no claim that there is a link.Mr. Trainors testimony also was not relevant to the Courts determination on the quantum of emotional distress damages, which were awarded in full.Because none of the alleged acts of the DOJ attorneys involving Mr. Trainor affected the Courts judgment, they do not support the vacatur of the judgment under Rule 60.The non-effect of Mr. Trainors allegations on the judgment of the Court is fully apparent from the already-available information, because Mr. Higmans telephone calls with Mr. Trainor are, as noted above, recorded and available. B.Bacon Allegations 1.Alleged Pressure From ATF Attorney Ms. Bacon To Not Re-Open ATFs Arson Investigation Related To Plaintiffs Home Plaintiff claims that, in January 2012, ATF attorney Valarie Bacon possibly obstructed an arson investigation and tampered with witnesses and evidence, by directing [ATF Special Agents] Thomas Atteberry and Carlos Canino not to re-open ATFs investigation.Dkt. No. 313 at 4.Of plaintiffs many allegations, this and allegations concerning Mr. Trainor are the only ones mentioned by the Court as possibly warranting further inquiry.Dkt. No. 316 at 4.But this allegation was fully considered prior to the judgment, and, in any event, it could not have impacted the judgment. Plaintiff postulates, with no factual basis at all, that Mr. Kiffner, Ms. Bouman and others may have directed her and assisted her to file a false statement.Dkt. No. 313 at 4.After hearing testimony from Mr. Atteberry (App. 59-61), the Court directed the United States to investigate what transpired and report back to the Court.Consistent with that direction, this matter was then addressed thoroughly in the Governments July 1, 2013 filing which was submitted prior to the second half of trial.Dkt. No. 199.When contacted about the matter in June and July 2013, Ms. Bacon had no specific recollection of discussing the Dobyns case with Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 23 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 23 of 5418 Mr. Atteberry, but did acknowledge that the conversation could have taken place.Id. at 4.Mr. Atteberry, in a follow-up interview, described her comment as an off the cuff comment, and stated that he did not consider it to be a matter that should be reported as improper.Id. at 5.In his subsequent interview, Mr. Atteberry confirmed what he had testified to at trial, that the comment by Ms. Bacon had no effect on his course of action.See Dkt. No. 199 at 5.Although there was already a fire investigation being led by the FBI in January 2012, ATF did in fact re-open its own investigation in 2012 after Ms. Bacon purportedly spoke to the special agents about reopening the investigation.Indeed, even plaintiff stated on March 20, 2013, over a year later, that [f]ortunately[,] Atteberry and Canino did not allow an incompetent attorney to dictate to them how ATF investigates crimes.The investigation was re-opened and is active today and making progress.App. 63 (emphasis added).In sum, Ms. Bacons purported comment simply had no effect on ATFs re-opening the fire investigation.Plaintiff was aware of the alleged comments made by Ms. Bacon to Mr. Atteberry and Mr. Canino well before the trial in this case, as he acknowledges.Dkt. No. 337 at 15.Thus, the conversations (if they took place) did not interfere in any way with plaintiffs ability to fully and fairly present his case. Plaintiff does not claim that the Bacon allegations had any impact on the Courts judgment, and, as we have explained, there was no impact the allegations were uncovered well before judgment, they did not impact the testimony of the witnesses, and the Court addressed these allegations in detail in its opinion.The Court specifically referred the matter relating to Ms. Bacons alleged statement to DOJs Office of Professional Responsibility.See 118 Fed. Cl. at 289, 331 n.73.That Office which has jurisdiction over attorney misconduct both at ATF and the Civil Division has initiated an inquiry.That, rather than a Rule 60 proceeding, is the Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 24 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 24 of 5419 proper venue for evaluation of alleged attorney misconduct, but that alleged misconduct could have had no possible impact on the Courts judgment. 2.Mr. Harringtons Alleged Knowingly False Assertion To The Court Regarding Ms. Bacons Purported Statement Relatedly, plaintiff also claims that, during trial, lead counsel David Harrington lied to the Court when, while in chambers and off the record during trial on June 17, 2013, he told the Court that he was unaware of Ms. Bacons comment to the special agents until Mr. Atteberry testified about the purported comment at trial.In fact, plaintiffs counsel had sent Mr. Harrington an e-mail about this matter on March 21, 2013, but Mr. Harrington did not recall the e-mail while addressing this matter with the Court in chambers.Mr. Harrington promptly corrected this inadvertent misstatement in the Governments July 1, 2013 filing.Dkt. No. 199. Plaintiff cannot show that Mr. Harringtons statement which was corrected just a few weeks later and prior to the end of trial interfered with his ability to present his case in any way.Whether Mr. Harrington could recall plaintiffs e-mail making the allegation about Ms. Bacon which was one of literally hundreds of e-mail allegations Mr. Harrington had received from plaintiffs counsel was simply not relevant to the issues before the Court.Mr. Harrington was, of course, not a witness in the case and his recollection had no relevance to the factual issues before the Court. And Mr. Harringtons statement, which was quickly corrected, did not improperly influence the Court.After his statement, the matter was fully briefed before the Court, to the Courts satisfaction.App. 68 (Aug. 21, 2013 order denying plaintiffs request for a status conference, stating The court has determined that it will deal with this matter in the context of this litigation and that it has adequate information for that purpose) (emphasis added)). Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 25 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 25 of 5420 Mr. Harringtons statement also could not have had any effect on the Courts determination that ATF did not breach the settlement agreement or its conclusion that $173,000 represented 100 percent of the emotional distress damages. C.The Alleged Failure Of Mr. Kiffner And Ms. Bouman To Produce Audio Recordings Plaintiff alleges that Kent Kiffner, who was lead counsel until early April 2012, and ATF attorney Rachel Bouman withheld telephone surveillance recordings despite plaintiffs requests for production.Dkt. No. 313 at 4.Plaintiffs memorandum acknowledges that this allegation concerns a discovery issue that was resolved with the production of the two audio tapes in August 2011, with the Courts full knowledge.Dkt. No. 337 at 19.Because this discovery issue was resolved in plaintiffs favor nearly two years prior to trial, it cannot provide a basis for vacatur of the Courts judgment. The Court resolved this matter on October 24, 2011, by granting the parties October 12, 2011 motion to which plaintiff consented, reopening five of plaintiffs depositions.Dkt. Nos. 73 and 74.In the consent motion, the United States explained, as Mr. Kiffner had informed plaintiffs counsel, that Mr. Kiffner discovered that the recordings had been produced by the agency to the Civil Division, but had been omitted from production when the agencys materials were converted for use by the Government in an electronic database.Dkt. No. 73 at 2.The consent motion also explained that the recordings were provided to plaintiffs counsel at an August 23, 2011 deposition, and acknowledged that the recordings should have been produced by the Government with the bulk of defendants production.Id. at 1-2.Remarkably, the motion explains that to avoid any prejudice to plaintiff, the parties have agreed, subject to court approval, to reconvene five of the depositions taken since June 2011.These reconvened depositions will be done at the Governments expense.Id. at 2 (emphasis added). Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 26 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 26 of 5421 Plaintiffs counsel subsequently took those additional depositions and he eventually moved the audio recordings into evidence at trial.Despite that, plaintiffs counsel continued to send harassing letters demanding further information regarding the chain of custody of the audio tapes.See App. 24; see also App. 22-23. Quite simply, this discovery issue which was resolved almost two years prior to the commencement of trial cannot provide a basis for vacatur of the Courts judgment under Rule 60(b)(3) or Rule 60(d)(3).The initial inadvertent omission of the audio recordings from the Governments production did not prejudice plaintiff.A copy of the audio recordings was made available to plaintiffs counsel, at Mr. Kiffners instruction, in August 2011.The Government cooperated with plaintiff to reconvene five depositions, at the Governments expense.And plaintiff moved the audio recordings into evidence at trial.Moreover, there can be no question that the Court was not improperly influenced by this discovery issue, which plaintiff acknowledges was resolved with the Courts full knowledge.See Dkt. No. 337 at 20. Plaintiffs allegations regarding the audio recordings also could not affect the outcome of this case.The audio recordings were considered by the Court in reaching its decision.Even if the Court were to accept plaintiffs wholly unfounded allegation that the initial omission of the audio recordings from the Governments document production was intentional misconduct, the allegation would not change the Courts liability ruling, the quantum of damages awarded, or the resulting judgment. D.The Alleged Failure Of DOJ Attorneys To Discourage Or Correct Perjury Of Mr. Gillett And Mr. Higman AtTrial Plaintiff alleges that George Gillett and Charles Higman committed perjury at trial and further alleges (without any support or basis) that DOJ attorneys did nothing to discourage or correct the alleged perjury and likely encouraged it.Dkt. 313 at 4.Plaintiffs allegations of Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 27 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 27 of 5422 perjury are insufficient as a matter of law to constitute a basis to grant relief under Rule 60.As the Special Master has stated in regard to a previous case, Perjury alone, however, where the court and its officers are not involved, does not raise to the level of a fraud upon the court.As this court explained:The possibility of a witness testifying falsely is always a risk in our judicial process, but there are safeguards within the system to guard against such risks.The most basic of these is cross-examination of witnesses.Lockwood, 46 F.R.D. at 632-33. Johnson v. Maddox, No. Civ.A. 00-2743, 2005 WL 2318075, at *1 (D.D.C. Sept. 22, 2005).Thus, the Special Master in Johnson counseled that possible perjury should be most properly addressed through cross-examination, presentation of contrary evidence, and argument.Id. at *2; see also Council, 559 F. Appx at 873. Conclusory allegations of perjury and fraudulent concealment of perjury do not constitute the requisite clear and convincing evidence, or demonstrate conduct that would prevent the moving party from fully and fairly presenting its case.See White v. Fox, 576 F. Appx 327, 332 (5th Cir. 2014).Plaintiff had every opportunity to examine both witnesses at deposition and at trial and, in fact, did so.Further testimony from these witnesses would be nothing more than a prohibited second bite at the apple, under the guise of a Rule 60 motion, because plaintiff cites no new evidence establishing that its prior examinations of the witnesses were not fair opportunities to test the credibility of the witnesses and their testimony. Nor can plaintiff establish that the alleged perjury deceived or improperly influenced the Court to the detriment of plaintiffs case.Both Mr. Gillett and Mr. Higman appeared before the Court at trial, under oath.Plaintiffs counsel, as well as the Court, had the opportunity to question them about the bases for their testimony.After weighing their testimony, the Court Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 28 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 28 of 5423 made clear credibility findings regarding these two individuals, discounting their testimony.Dobyns, 118 Fed. Cl. at 311-12. Moreover, these allegations could not, even if substantiated, alter the Courts judgment.The Court considered the testimony of Mr. Gillett and Mr. Higman and did not find either witness to be credible.In other words, even if the Court accepts, for the purpose of plaintiffs Rule 60 motion, the wholly unfounded and untrue allegations against DOJ attorneys, plaintiff cannot demonstrate any potential effect on the outcome of the case.Further discrediting of Mr. Higman or Mr. Gillett would not affect the Courts decision to award plaintiff $173,000 the amount the Court determined to be the maximum possible award for emotional distress damages.Thus, these allegations do not support vacatur pursuant to Rule 60.E.Allegations That Mr. Kiffner And Ms. Bouman Failed To Cure Or Suborned Deposition Perjury By Three ATF Witnesses Plaintiff makes the bald assertion that Mr. Kiffner and Ms. Bouman failed to cure or suborned deposition perjury by Mr. Gillett, Mr. Higman regarding the surveillance and suspect status of plaintiff and also by Los Angeles SAC John Torres.Dkt. No. 313 at 4.Plaintiffs allegations regarding the deposition testimony of Mr. Higman and Mr. Gillett are infirm for the same reasons identified above.Plaintiff cannot show any prejudice relating to Mr. Torres.The alleged perjury, relating to whether Mr. Torres attempted to sell any ATF investigational stories, is irrelevant and, by his own account, plaintiff was aware of the alleged perjury well before trial.See Dkt. No. 337 at 23.The alleged and irrelevant perjury also could not influence the court, inasmuch as Mr. Torres did not testify at trial.See Dkt. No. 207 at 1. For the same reasons, these allegations cannot sustain vacatur under Rule 60(b)(3) or Rule 60(d)(3).The allegations, even if accepted as true, simply could not affect the Courts decision in any way.Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 29 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 29 of 5424 F.Mr. Harringtons Allegedly False Representations Regarding Two ROIs And Wrongful Withholding Of Them Plaintiff alleges that Mr. Harrington wrongly withheld two ROIs and falsely represented their relevance to the Court to keep them from being used at trial.Dkt. No. 313 at 4.These allegations again cannot provide the basis for vacatur pursuant to Rule 60 because the ROIs were in fact produced and plaintiff used them at trial. The ROI Related To The Fire Investigation:Plaintiff cannot show that the timing of the Governments production of the ROI or Mr. Harringtons statements regarding its relevance substantially interfered with his ability to fully and fairly present his case.See Cryovac, Inc., 862 F.2d at 924.This was a pre-trial discovery matter which was resolved without the Courts intervention.Mr. Harrington consistently apprised plaintiff of the status of the document.Plaintiffs counsel was provided the opportunity to view the ROI in January 2013, and did so.See Harduvel v. Gen. Dynamics Corp., 801 F. Supp. 597, 609 (M.D. Fla. 1992) (Where a party grants access to its files in conformity with a discovery order, misconduct will not ordinarily be found.)Finally, of course, as he believed he would, plaintiffs counsel then received the ROI prior to trial, introduced it into evidence, and used it to examine witnesses. Additionally, the timing of the Governments production of the ROI relating to the fire investigation and Mr. Harringtons statements regarding its relevance did not improperly influence the Court, as required for relief under Rule 60.Plaintiff introduced the ROI into evidence at trial, and the Court favorably considered the ROI in reaching its decision.Dobyns, 118 Fed. Cl. at 312. The ROI Related To The Withdrawal Of Fictitious Credentials:Plaintiff also contends that Mr. Harrington wrongfully withheld a second ROI concerning the withdrawal of plaintiffs fictitious credentials, and also lied about its relevance.Dkt. No. 313 at 4.The Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 30 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 30 of 5425 preparation of this second ROI was not completed until mid-June 2013, and it was produced to plaintiff shortly thereafter.Plaintiff also introduced this second ROI into evidence and used it in questioning Mr. Trainor.Plaintiffs allegations relating to the second ROI fail Rule 60s causation requirement for this reason. G.Alleged Refusal Of Deputy Director Brandon To Sign PRB Recommendations Plaintiff asserts that Deputy Director Thomas Brandon replaced [Professional Review Board (PRB)] Bureau Deciding Official (BDO) Steven Zellers, who was anticipated to sign ROI 1s PRB recommendations within days of issuance, and then refused to sign the PRB recommendations for ROI 1 and ROI 2, possibly at DOJs instruction for privilege reasons.Dkt. No. 313 at 4 (emphasis added). Plaintiff appears to be confused about the role of Deputy Director Brandon and has not articulated how his confused allegations relate to his ability to fully and fairly present his case, nor can he.The identity of the deciding official and the actions taken in response to the PRBs recommendations are not relevant to the issues in this case.In any event, information relating to the PRB recommendations, and Deputy Director Brandons role as the deciding official, were disclosed to plaintiff as soon as practicable following the conclusion of ATFs administrative proceedings and in time for plaintiff to use the reports at trial. This information was also disclosed to the Court, although neither the identity of the deciding official, nor the actions that were taken in response to the PRBs recommendations, were actually relevant to the Courts decision.The Court found the two ROIs that were reviewed by the PRB to be credible and considered them accordingly.Dobyns, 118 Fed. Cl. at 312 (the court attaches considerable weight to the testimony of Agent Trainor, who authored the Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 31 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 31 of 5426 2012 and 2013 IAD reports).As such, plaintiff cannot demonstrate that the Court was deceived or improperly influenced by his allegations of misconduct.Plaintiff also cannot demonstrate that his allegations regarding Deputy Director Brandon could affect the Courts judgment.Because it is not germane to the Courts decision who the deciding official was, plaintiffs unfounded allegations that the DOJ could possibly have instructed Deputy Director Brandon to refuse to sign the PRB recommendations could not affect let alone materially affect the Courts liability ruling or damages award. H.The Issuance Of Three PRB Letters Of Clearance Before Trial Plaintiff postulates that, [o]n the eve of trial, Mr. Brandon issued PRB letters of clearance for William Newell, Marino Vidoli and Steven Pugmire; if this was at the DOJs request, it would constitute witness and evidence tampering.Dkt. No. 313 at 5.Plaintiff cannot establish any prejudice as a result of the alleged request or the issuance of the letters because plaintiff does not challenge the validity of the PRB letters of clearance.The only effect that their issuance could have had on the trial was to deprive the plaintiff of possible impeachment through the implication that the witnesses would not receive clearance letters.And, as a matter of timing, the letters of clearance were issued within one month after the PRB found no wrongdoing related to the withdrawal of plaintiffs credentials, App. 48-49, clearly not a questionable length of time.In short, these allegations show no effect whatsoever on plaintiffs ability to fully and fairly present his case.Further, there is no evidence that the issuance of the letters of clearance (or the entirely unsupported allegation that the issuance may have been at the DOJs request) improperly influenced the Court, nor could these allegations, even if true, alter the Courts judgment.The letters of clearance were entered into evidence at trial and were considered by the Court.App. Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 32 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 32 of 5427 48-49.The Court found the two ROIs that were reviewed by the PRB to be credible, but gave the letters of clearance little weight.See Dobyns, 118 Fed. Cl. at 312, 320. I.The Alleged Coaching Of Mr. Carter Through His Cell Phone Mr. Ronnie Carter was called as plaintiffs first witness and testified on June 11, 2013.Mr. Carters cell phone rang twice during his testimony, and plaintiff alleges that Government counsel may have signaled the witness through his phone to look for cues.Dkt. No. 313 at 5. Plaintiffs allegations again fail the causation requirements of Rule 60(b)(3) and Rule 60(d)(3).Plaintiff cannot establish that the ringing of Mr. Carters cell phone during trial substantially interfered with his ability to fully and fairly present his case.Mr. Carter was on the stand both times that his phone rang, and plaintiffs counsel could have questioned Mr. Carter about the phone calls he received.If plaintiff believed that there was something suspicious about Mr. Carters cell phone ringing during his examination, he could have also asked to examine the cell phone or raised the issue with the Court.Plaintiff had ample opportunity to cross-examine Mr. Carter generally, and to investigate the circumstances of the ringing cell phone specifically. There is also no indication that the ringing of Mr. Carters cell phone influenced or deceived the Court.Had the Court been concerned about the circumstances of the cell phone, it also could have questioned Mr. Carter about the calls he received during his testimony.The record indicates that the Court believed this to be exactly what it was the inadvertent failure of an elderly, disabled witness to silence his cell phone before taking the stand.Although plaintiff raised allegations regarding Mr. Carters cell phone in his Rule 60 motion, it was unclear how plaintiff believed those unfounded allegations could have affected the case.Now, in speculative new allegations not made in his Rule 60 motion, plaintiff suggests that if evidence emerges that the DOJ attorney influenced the testimony of Mr. Carter or Mr. Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 33 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 33 of 5428 Hoover, it could affect the Courts prior determination that ATF did not breach the settlement agreement.Dkt. 337 at 32(emphasis added).These speculative allegations could not possibly relate to the outcome in this case.In rejecting plaintiffs argument that the Government breached paragraph 10 of the settlement agreement, the Court relied almost exclusively on the language of the settlement agreement itself rather than any extrinsic evidence; in particular, the Court did not rely at all on the testimony of Mr. Carter or Mr. Hoover.Dobyns, 118 Fed. Cl. at 314-16.Thus, there is no reason to believe, even assuming some new information would be revealed during any further discovery taken, that such evidence would alter the trial courts opinion concerning the Governments non-breach of paragraph 10 of the settlement agreement. Further, even if plaintiff could convince the Court through second examinations of Mr. Carter or Mr. Hoover that it erred in determining that there was no breach of paragraph 10 a speculative assumption any such change in the Courts opinion would not alter the Courts judgment in favor of plaintiff in the amount of $173,000.See Dobyns, 118 Fed. Cl. at 322 (Plaintiffs post-trial briefs have not provided any degree of detail regarding the economic damages he seeks, particularly insofar as the breach of the covenant goes.Accordingly, the court concludes that plaintiff is entitled to no recovery of economic damages.).Instead, at most, it would only add a second basis for liability (in addition to the breach of the implied covenant of good faith and fair dealing) which would not impact the amount of non-economic damages that would be awarded to plaintiff in any way because he has already received 100 percent of those damages.4 4The other allegations raised for the first time in plaintiffs memorandum should be summarily rejected.With no factual basis whatsoever, plaintiff speculates that DOJ may have directed ATF personnel to telephone him as an unethical attempt to communicate with a represented party.Dkt. No. 337 at 32.Even if true, and it absolutely is not, plaintiffs allegation could not alter the Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 34 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 34 of 5429 III.Discovery Should Be Denied Because Plaintiff Has Not Raised A Colorable Claim Of Fraud For the reasons we have explained, even looking at the facts with the unjustifiable spin placed on them by plaintiff, they do not give rise to a Rule 60 claim of fraud on the court because they did not prevent plaintiff from fully or fairly presenting his case or affect the judgment, which was entered in plaintiffs favor.But plaintiffs undisciplined allegations also cannot be left unanswered the record evidence shows that they are a distorted view of the procedural facts, and they unjustifiably disparage good and hard-working attorneys at the Department of Justice.Thus, even putting to the side the dispositive legal flaw in plaintiffs motion, plaintiffs memorandum falls far short of establishing a colorable claim of fraud, a necessary predicate to discovery.See, e.g., White, 2015 WL 501973, at *2.Allegations based solely on conjecture and unsupported assertions do not demonstrate a colorable claim of fraud.See Walsh v. Hagee, 10 F. Supp. 3d 15, 20 (D.D.C. 2013) (Rule 60(b)(3) motion denied because it was based on conjecture and unsupported assertions); Ramirez v. Dept of Justice, 680 F. Supp. 2d 208, 210 (D.D.C. 2010) (same). A.The Available Facts Show There Is No Colorable Claim Of Fraud 1.The Alleged Threats To Mr. Trainor The evidence demonstrates that DOJ attorneys did not violate the duty of candor or any other obligation by not informing the Court of the communication between Mr. Trainor and Mr. Higman.Accordingly, there is no need for discovery. Courts liability ruling, the quantum of damages awarded, or the resulting judgment.Plaintiffs outrageous suggestion that an altercation between him and two Hells Angels associates could have been an effort by DOJ to entrap him must be rejected for the same reason.Id. Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 35 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 35 of 5430 During the first part of the trial in Tucson, plaintiff called Mr. Higman and questioned him about his work related to ATFs investigation of the fire at plaintiffs house.Plaintiffs counsel showed Mr. Higman the ROI prepared by Mr. Trainor in IAD related to ATFs initial fire investigation, which was critical of Mr. Higman.Mr. Higman had not previously seen the ROI.App. 69 (No, Im not aware of it.Ive never seen this before.I wasnt aware that it even existed.).Mr. Higman made it clear that he did not agree with the conclusions reached in the ROI.App. 70-71. Mr. Trainor testified immediately after Mr. Higman regarding the ROI on ATFs investigation of the fire at plaintiffs house.On June 13, 2013, Mr. Trainors testimony about the ROI related to the fire investigation was concluded, and the trial record of the testimony of both Mr. Higman and Mr. Trainor regarding that subject was closed.The first part of the trial concluded on June 21, 2013.App. 75.Mr. Trainor would return to testify about unrelated matters when the trial resumed in Washington, D.C. in July. On June 28, 2013, Mr. Higman called Mr. Trainor and left a brief voicemail message for him.This voicemail is the extent of what plaintiff claims is a death or violence threat.Dkt. 337 at 10.In the voicemail, Mr. Higman alluded to having seen Mr. Trainors ROI on the fire investigation, stated that he was looking forward to talking, and stated [h]ope your family is doing good, too.App. 76.Contrary to plaintiffs patently false assertion, Mr. Higmans voicemail message was not clearly a death or violence threat.Dkt. No. 337 at 10.Also, as is plainly evident from the actual audio recording and Mr. Trainors own transcription of the message, App. 75, Mr. Higman did not as plaintiff falsely states repeatedly request[] to meet Trainor face to face, ask Mr. Trainor hows your health, or ask how are your children.See Dkt. No. 337 at 11.Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 36 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 36 of 5431 At the time, Mr. Trainor perceived the message as a threat and reported it to ATF.On Mr. Trainors urging, the ATF conducted an investigation into the alleged threat, including recording Mr. Trainors return call to Mr. Higman, without Mr. Higmans knowledge.In that July 2, 2013 telephone conversation, Mr. Higman made it clear that he had called only to discuss Mr. Trainors ROI on the fire investigation, and repeatedly denied threatening Mr. Trainor.App. 77-81 (e.g., It was not a veiled threat and . . . it wasnt meant that way at all. . . .My only beef with you is that report . . . and I dont feel it was professionally done and it draws conclusions that make me look like I done something improper. . . .). On July 22, 2013, the second part of the trial commenced in Washington, D.C.Mr. Trainor testified for a second time, limited to addressing a separate ROI on the withdrawal of plaintiffs undercover credentials, on July 23-24, 2013.During this second appearance as a witness, Mr. Trainor did not testify about his first ROI on the ATF fire investigation or about Mr. Higmans role in the fire investigation.Mr. Higmans voicemail message and the telephone conversation between the two men were not raised with the Court. The available facts demonstrate that the DOJ attorneys did not violate the duty of candor or any other obligation by not informing the Court of the communications between Mr. Trainor and Mr. Higman.First, the communications between Mr. Trainor and Mr. Higman did not violate the exclusion order under Federal Rule of Evidence 615.5Both Mr. Higman and Mr. Trainor had concluded their testimony about the ATF fire investigation before Mr. Higman left his voicemail message.Although they spoke of the ROI during the July 2, 2013 conversation, they did not discuss the trial, their role as a witness, or the trial testimony on either of the ROIs. 5The Government invoked FRE 615 at the beginning of trial.See App. 52a-52e; FRE 615 (At a partys request, the court must order witnesses excluded so that they cannot hear other witnesses testimony.). Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 37 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 37 of 5432 App. 77-81.Because the communications could not affect testimony on a closed subject, there was no violation of the exclusion order and no requirement that the communications be disclosed to the Court.Second, although Mr. Trainor describes Mr. Higmans voicemail message as a threat, review of Mr. Higmans voicemail message, App. 76, and the July 2, 2013 conversation, App. 77-81, demonstrates that Mr. Higman was not attempting to interfere with Mr. Trainors testimony in this proceeding.Additionally, Mr. Trainor reported the alleged threat to ATF, and the recording of the July 2, 2013 telephone conversation was obtained as a result of ATFs investigation.ATF was the appropriate organization to assist Mr. Trainor in contacting Mr. Higman regarding his voicemail message and evaluating whether the message was, in fact, a threat to Mr. Trainor.2.Bacon Allegations i.Alleged Pressure From Ms. Bacon To Not Re-Open ATFs Arson Investigation Related To Plaintiffs Home Plaintiff has not shown a colorable claim of fraud relating to his allegations about Ms. Bacon.There is no evidence or testimony that Ms. Bacon directed Mr. Atteberry or Mr. Canino to do anything.Nor are there any grounds to allege that Ms. Bacon tampered with witnesses or evidence.Finally, there is no basis for plaintiff to even suggest that Ms. Bacon filed a false declaration and was aided in doing so by DOJ attorneys.6 On July 11, 2013, Mr. Atteberry testified in this case before the Court.On questioning from plaintiffs counsel regarding ATFs re-opening of its investigation into the fire at plaintiffs house, the following exchange took place: 6Plaintiff wrongly asserts that DOJ . . . assisted Bacon to prepare a declaration.Dkt. No. 337 at 16.Ms. Bacon did not prepare a declaration. Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 38 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 38 of 5433 Q. Did you get any kind of discouragement in any respect from anyone at ATF with respect to reopening this arson investigation? A. Yes. Q. Please explain. A. When I was seeking guidance to reopen the investigation, I had a phone conversation with somebody from Counsel's office in ATF headquarters. THE COURT: Can you be more specific, Agent? Do you know who it was? A. I believe it was Valerie Bacon. THE COURT: All right. Proceed. A. I had a phone conversation, and I also believe I talked to her in person one time when she was in Phoenix, and I believe during the telephone conversation she made a comment to me that if you, meaning myself, reopen the investigation that would damage our civil case. *** Q. All right.Mr. Atteberry, did Ms. Bacon make any other comments to you in this similar vein? A. Not that I recall, but that was the one comment that kind of gave me pause and struck me as odd that she would say that to me given the fact that I was the one ultimately responsible for asking for the case to be reopened and ultimately getting the case reopened.And I didnt do anything about it at the time.I just pushed forward and reopened the case. App. 59-61 (July 11, 2013 Tr. 2045-2047) (emphasis added). In his testimony, Mr. Atteberry clearly did not state that Ms. Bacon directed him to do anything.Instead, he testified that she made a comment that re-opening the investigation would Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 39 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 39 of 5434 damage this case.7Moreover, he did not view the statement as a direction because he just pushed forward and reopened the case.App. 61.Thus, on its face, Mr. Atteberrys testimony refutes plaintiffs allegation within the Rule 60 motion because he moved forward with reopening the fire investigation. The Governments July 1, 2013 filing, prepared at the Courts request, demonstrates beyond cavil that Ms. Bacon did not engage in misconduct or act fraudulently towards the Court.Dkt. No. 199.8When contacted about the matter in June and July 2013, Ms. Bacon had no specific recollection of discussing the Dobyns case with Mr. Atteberry, but did acknowledge that the conversation could have taken place.Id. at 4.Mr. Atteberry, in a follow-up interview, described her comment as an off the cuff comment, and stated that he did not consider it to be a matter that should be reported as improper.Id. at 5.And, of course, the comment did not influence Mr. Atteberry, who did not report to Ms. Bacon, and who pushed forward and reopened the case.App. 59-61. Contrary to plaintiffs bald assertion, Ms. Bacon did not tamper with any witness or evidence.Indeed, she purportedly made the comments to Mr. Atteberry and Mr. Canino in January 2012, over a year before the trial and well before Mr. Atteberry was even identified as a 7The United States respectfully disagrees with the Courts characterization, in its initial decision, of Mr. Atteberrys testimony as indicating that Ms. Bacon attempted to convince SAC Atteberry not to reopen the arson investigation.Dobyns, 118 Fed. Cl. at 306 n. 25.Mr. Atteberry did not testify that Ms. Bacon tried to convince him of anything.He simply said that she made a comment and he made it clear that it was just the one comment.

8There is no basis to find that the alleged comment was improper.Ms. Bacon was an ATF attorney speaking to an ATF employee about a pending case.Commenting on whether the re-opening of the fire investigation could affect this case is well within the confines of a discussion an attorney might have with a fellow employee, particularly given that Ms. Bacon was not in a position to control Mr. Atteberrys decision whether to move forward with the investigation.At any rate, without more, that single comment is not extraordinary, and Mr. Atteberry clearly did not perceive it that way.Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 40 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 40 of 5435 witness.Thus, the general comment, even if made, could not have been meant to influence the testimony of any witness.Nor was Ms. Bacons comment related to any trial evidence, and she obviously could not have tampered with any.Plaintiffs counsel did not raise any allegation of witness tampering leading up to the trial, nor could he have.As the Court noted in its August 2014 decision, [n]either party notified the court of these contacts until SAC Atteberry testified in court.Dobyns, 118 Fed. Cl. at 306 n.25 (emphasis added). In sum, Ms. Bacons single comment, made over a year before the trial and which was immediately discounted by Mr. Atteberry, does not constitute a fraud on the Court as defined under the strict standards of Rule 60(d)(3).As an attorney with ATF, it also was not wrong for Ms. Bacon to discuss the potential effect of re-opening the investigation on this case with ATF special agents, where it is clear that she did not act to direct them or coerce them into a position.Both Ms. Bacon and Mr. Atteberry recognized that she had no authority over the special agents and the comment, assuming it was made, did not suggest otherwise.Indeed, Mr. Atteberry considered it an off the cuff comment and he ignored it.This one comment plainly was not directed at the Court, or intended to undermine the functioning of the Court.Accordingly it could not constitute a fraud against plaintiff under Rule 60(b)(3). ii.Mr. Harringtons Alleged Knowingly False Assertion To The Court Regarding Ms. Bacons Purported Statement There is simply no basis not to believe Mr. Harringtons statement, or to conclude that he knowingly attempted to mislead the Court, that he did not recall hearing of Ms. Bacons comment to Mr. Atteberry until Mr. Atteberrys testimony.Indeed, Mr. Harrington explicitly advised the Court during the in-chambers discussion that he had received a large number of e-mails from plaintiffs counsel in the months leading up to trial and it was possible that he had received an e-mail about Ms. Bacon from plaintiffs counsel.Dkt. No. 199 at 2.In fact, from Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 41 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 41 of 5436 the time he became lead trial counsel on the case on April 5, 2012, until approximately June 2013, Mr. Harrington received more than 400 e-mails from plaintiffs counsel regarding this case, many of which were lengthy diatribes.Id. at 3; see also App. 65; Dkt. 337-1 at 5-15, 20-22.In the crush of pre-trial activities and then in chambers, the fact that Mr. Harrington could not recall an e-mail related to Ms. Bacon is completely understandable, and there is no basis to question the motives behind his statement to the Court.This is especially true given that Mr. Harrington immediately corrected his inadvertent misstatement in the Governments July 1, 2013 filing to the Court.This allegation certainly does not support an allegation of misconduct or fraud under Rule 60(d)(3) or (b)(3).3.The Alleged Failure Of Mr. Kiffner And Ms. Bouman To Produce Audio Recordings The long-since resolved issue of the Governments production of two audio recordings also does not amount to a colorable claim of fraud. On August 21, 2011, Mr. Kiffner met with witness Matthew Bayer to prepare for Mr. Bayers upcoming deposition.At that time, Mr. Kiffner asked Mr. Bayer about documents pertaining to the case, and Mr. Bayer informed him of recorded telephone conversations with plaintiff that he had previously provided to ATF in response to the agencys request for his documents.App. 1.At that time, Mr. Kiffner was not aware of the existence of those recordings, and he asked Mr. Bayer to bring them to his deposition.App. 1, 13. A copy of the audio recording was provided to plaintiffs counsel at Mr. Bayers deposition on August 23, 2011.App. 1.Because plaintiff had not received the recordings before, Mr. Kiffner agreed that plaintiffs counsel could listen to the recordings during a break in the deposition and question Mr. Bayer about them.He stated: Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 42 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 42 of 5437 Thats totally fair.I understand that.I frankly was not aware of them until Mr. Bayer brought them to my attention when we spoke before the deposition.You can ask whatever questions you feel necessary. App. 13. In a 20-page, single spaced letter dated August 31, 2011, in which plaintiffs counsel raised many concerns regarding discovery, he offered that he was optimistic that we can come to a resolution and agreement regarding these discovery disputes.App. 15.Although he expressed concern that the failure to produce the two audio recordings in a timely fashion dramatically and negatively impacted Plaintiffs case and his rights and opportunities to conduct full discovery, plaintiffs counsel also plainly stated: Mr. Kiffner, I and my client take you at your word that you overlooked Civil Divisions obligation to disclose the recordings and that you did not do so intentionally.I am not alleging any ethical infraction on the part of Civil Division and I personally do not believe that one occurred. App. 19 (emphasis added). On September 22, 2011, Mr. Kiffner responded to the August 31, 2011 letter by objecting to the strong language used in that letter, especially in light of [his] efforts to be forthcoming regarding the recordings.App. 1.Mr. Kiffner also explained why the audio recordings had mistakenly not been produced earlier, and the steps taken to ensure plaintiff had all such material.App. 1-2. Although he disagreed that plaintiff suffered any prejudice because of the timing of the recordings, Mr. Kiffner agreed that in a good faith effort to remedy the omission, the United States would make five witnesses available for additional deposition questioning to cover the audio recordings.He also proposed a motion for leave to conduct the depositions, and stressed Case 1:08-cv-00700-FMA Document 342 *SEALED*Filed 03/13/15 Page 43 of 54 Case 1:08-cv-00700-PEC Document 440 Filed 08/12/15 Page 43 of 5438 that the Government is making the above proposal in good faith to remedy any perceived prejudice you represent your client has incurred.App. 2.In the consent motion, the United States explained, as Mr. Kiffner had previously to plaintiffs counsel, that Mr. Kiffner discovered that the recordings had been produced by the agency to the Civil Division, but had been omitted from production to plaintiff when the agencys materials were converted for use by the Government in an electronic database.Dkt. No. 73 at 2.The consent motion also explained that the recordings were provided to plaintiffs counsel at the August 23, 2011 deposition, and acknowledged that the recordings should have been produced by the Government with the bulk of defendants production.Id. at 1-2. Simply put, there was no fraud.There was no misconduct.This was not part of an unconscionable scheme.Mr. Kiffner made a single, temporary mistake, which he corrected with the consent of plaintiff and approval of the Court.As a result, plaintiff received copies of the recordings, obtained discovery related to the recordings (at the Governments expense), and ultimately introduced the recordings in