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Herring v. United States

September 22, 2005

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.

The opinion of the court was delivered by: Aldisert, Circuit Judge.

PRECEDENTIAL

Argued: July 15, 2005

Before: ALITO, VAN ANTWERPEN and ALDISERT, Circuit Judges.

OPINION OF THE COURT

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.*fn1

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 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 ...


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