NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 22, 2010*
Decided December 22, 2010
Before
WILLIAM J. BAUER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐2476
DARRELL COBURN, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
PATRICK R. DONAHOE,** 06 C 5397
Postmaster General of the
United States Postal Service, Robert M. Dow, Jr.,
Defendant‐Appellee. Judge.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
**
We substitute Patrick R. Donahoe, the current Postmaster General of the United
States Postal Service, as the Respondent in this action. See FED. R. APP. P. 43(c)(2).
No. 10‐2476 Page 2
O R D E R
Darrell Coburn, a letter carrier for the United States Postal Service, appeals the denial
of his motion under Federal Rules of Civil Procedure 60(b)(3) and (d)(3) to vacate an earlier
judgment in favor of the Postal Service. We affirm.
Coburn sued the Postal Service in 2006, asserting that certain postal employees
violated the Privacy Act, 5 U.S.C. § 552a, when they accessed his administrative file without
his permission. The Postal Service admitted that its employees accessed the file, but
maintained that they did so lawfully in the course of their duties. According to the Postal
Service, the employees were investigating whether Cecil Watson, a management employee
and Coburn’s friend, violated the agency’s policy by acting as Coburn’s representative in a
separate complaint against the Postal Service. As a member of management, Watson was
not allowed to represent Coburn, and thus the employees examined Coburn’s file for
evidence of Watson’s representation. In September 2008, after a bench trial on Coburn’s
claims, the district court granted judgment for the Postal Service. It found that the
employees lawfully viewed Coburn’s records under an exception to the Privacy Act that
permits access when employees have a “need for the record[s] in the performance of their
duties.” Id. § 552a(b)(1). We affirmed that judgment. Coburn v. Potter, 329 F. App’x 644 (7th
Cir. 2009).
In February 2010, nearly 17 months after the district court entered its judgment,
Coburn filed a motion to vacate in light of new evidence suggesting that the Postal Service
and its counsel engaged in fraud on the court. See FED. R. CIV. P. 60(b)(3), (d)(3). The Postal
Service committed fraud, Coburn argued, by using a misleading memo at his bench trial to
justify accessing his file. The memo explains that Postal‐Service policy bars management
employees (such as Watson) from representing craft workers (such as Coburn) in
administrative proceedings against the Postal Service. But such memos, Coburn contended,
are informational only and should not be treated as official policy of the Postal Service, and
in support he pointed to a 1989 employee manual that he characterizes as newly discovered
evidence. He also cited a 1996 employee handbook listing five conflicts of interest for
employee representation, none of which stated that management employees could not
represent craft employees. Therefore, he concluded, Watson did not engage in wrongdoing
by assisting him with his complaint, and Postal‐Service employees had no need to access his
administrative file. The district court denied Coburn’s motion, determining that the one‐
year statute of limitations under Rule 60(b)(3) had passed and that Coburn did not allege
the egregious fraud on the court necessary to succeed under Rule 60(d)(3).
Coburn does not challenge the district court’s finding that his motion under Rule
60(b)(3) was time‐barred. Such motions must be brought within one year of the judgment
the party seeks to vacate, FED. R. CIV. P. 60(c)(1); Arrieta v. Battaglia,
461 F.3d 861, 864 (7th
No. 10‐2476 Page 3
Cir. 2006), and Coburn was untimely in waiting almost 17 months after the judgment to file
his motion.
Coburn argues that the district court erred in finding that the Postal Service did not
defraud the court because, he contends, it overlooked the Postal Service’s “bogus
document”—the memo regarding Postal‐Service policy. Fraud on the court, which is not
subject to the one‐year statute of limitations, may include inserting fraudulent documents
into the record, Oxxford Clothes XX, Inc., v. Expeditors Int’l of Washington, Inc.,
127 F.3d 574,
578 (7th Cir. 1997), but Coburn has not pointed to any evidence to suggest that the memo
itself—or the way the Postal Service used it at trial—was fraudulent. Nor has he explained
how the mere existence of the 1989 manual undermines the memo’s authenticity.
Coburn also asserts for the first time on appeal that counsel for the Postal Service
engaged in fraud by allowing witnesses to perjure themselves through testimony about the
memo. But he waived that argument when he did not present it to the district court. Fednav
Int’l Ltd. v. Cont’l Ins. Co.,
624 F.3d 834, 841 (7th Cir. 2010). And even if he had not, his
argument would still fail because here too he does not point to anything in the record to
support his claim. Because the purported fraud was not “conduct that might be thought to
corrupt the judicial process itself,” the district court properly denied the motion. Oxxford
Clothes,
127 F.3d at 574.
AFFIRMED.
