Council v. American Federation of Government Employees (AFGE) Union

Case: 13-12502 Date Filed: 03/18/2014 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12502
Non-Argument Calendar
________________________
D.C. Docket Nos. 6:09-cv-01406-MSS-GJK, 6:09-cv-01921-MSS-GJK
6:09-cv-01406
DARRALYN C. COUNCIL,
Plaintiff-Appellant,
versus
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFGE) UNION, et al.,
Defendants,
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
UNITED STATES OF AMERICA,
Defendants-Appellees.
______________________________________________________
6:09-cv-01921
DARRALYN C. COUNCIL,
Plaintiff-Appellant,
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versus
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellee,
TIMOTHY LIEZERT, et al.,
Defendants.
______________________________________________________
6:10-cv-00931
DARRALYN C. COUNCIL,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
Defendants-Appellees.
_______________________________________________________
6:10-cv-967
DARRALYN C. COUNCIL,
Plaintiff-Appellant,
versus
SECRETARY DEPARTMENT OF VETERANS AFFAIRS,
UNITED STATES OF AMERICA,
Defendants-Appellees.
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________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 18, 2014)
Before TJOFLAT, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
Darralyn C. Council, proceeding pro se, appeals the denial of his Federal
Rule of Civil Procedure 60 motions for relief from the final judgment on his
discrimination and retaliation claims under Title VII, 42 U.S.C. § 2000e-16(a)
against his former employer, the U.S. Department of Veterans Affairs (“VA”). We
affirm.
I. BACKGROUND
In the underlying proceedings, Council raised a variety of employment
discrimination and retaliation claims and challenged adverse personnel actions he
had experienced while employed at VA medical centers in Houston, Texas, and
Orlando, Florida. The district judge granted summary judgment on the majority of
Council’s claims but allowed several claims to proceed to trial. After the jury
found in favor of the VA, the district judge entered judgment on May 26, 2011.
Council subsequently appealed; we affirmed. Council v. Am. Fed’n of Gov’t
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Emps. (AFGE) Union, et al., 477 F. App’x 648, 649-50 (11th Cir. 2012) (per
curiam) (unpublished).
In April 2013, Council filed two Rule 60 motions for relief from the
judgment of the district judge. He argued two VA employees, Erich Schwartze
and Angela Bishop, had committed fraud on the court by perjuring themselves at
trial regarding the reasons for his demotion and by fabricating evidence. The
district judge construed those motions as motions for relief pursuant to Rule
60(b)(3), which she denied as untimely, because Council had failed to file them
within one year as prescribed by Rule 60(c)(1). On appeal, Council argues VA
personnel committed fraud on the court during the underlying proceedings, which
warrants setting aside the judgment. He also argues the merits of his underlying
employment-discrimination claims.
II. DISCUSSION
We review the denial of motions brought under Rules 60(b)(3) and (d)(3) for
abuse of discretion. Cox Nuclear Pharm., Inc. v. CTI, Inc., 478 F.3d 1303, 1314
(11th Cir. 2007). Rule 60(b)(3) provides relief from a final judgment or order for
fraud, misrepresentation, or misconduct by an opposing party. Fed. R. Civ. P.
60(b)(3). Motions under Rule 60(b)(3) for fraudulent conduct must be brought
within one year of the relevant judgment. Fed. R. Civ. P. 60(c)(1). Rule 60,
however, does not limit the judge’s power to set aside a judgment for “fraud on the
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court”; therefore, a party may move to set aside a judgment for fraud on the court
at any time. Fed. R. Civ. P. 60(d)(3); see Travelers Indem. Co. v. Gore, 761 F.2d
1549, 1551 (11th Cir. 1985) (per curiam) (noting an independent action for fraud
on the court does not contain a rigid time limitation). Where relief from a
judgment is sought for fraud on the court, the movant must establish by clear and
convincing evidence the adverse party obtained the verdict through fraud. Cox,
478 F.3d at 1314. “Conclusory averments of the existence of fraud made on
information and belief and unaccompanied by a statement of clear and convincing
probative facts which support such belief do not serve to raise the issue of the
existence of fraud.” Booker v. Dugger, 825 F.2d 281, 283-84 (11th Cir. 1987)
(citations, internal quotations marks, and alterations omitted).
Fraud on the court constitutes “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.” Travelers Indem. Co., 761 F.2d at 1551. Perjury and
fabricated evidence do not constitute fraud upon the court, because they “are evils
that can and should be exposed at trial,” and “[f]raud on the court is therefore
limited to the more egregious forms of subversion of the legal process, . . . those
we cannot necessarily expect to be exposed by the normal adversary process.” Id.
at 1552 (citation omitted).
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Even if Council brought his motions for relief under Rule 60(b)(3), the
district judge did not abuse her discretion by denying the motions as untimely. The
judge entered final judgment in Council’s employment discrimination case on May
26, 2011, but Council did not file his motions for relief until almost two years later,
in April 2013. See Fed. R. Civ. P. 60(c) (providing a motion under Rule 60(b)(3)
must be made within one year after entry of the judgment).
Even if we construe Council’s motions as filed under Rule 60(d)(3), which
carries no time limitation, he is not entitled to relief. Council has not established
by clear and convincing evidence that the VA obtained its favorable verdict
through fraud. See Cox, 478 F.3d at 1314. Without providing supporting
probative facts, Council makes conclusory averments regarding the existence of
fraud by contending VA employees Schwartze and Bishop committed perjury or
fabricated evidence. See Booker, 825 F.2d at 283-84. In addition, perjury and
fabricated evidence do not constitute fraud on the court, because they could have
been exposed at trial and are not considered to be “the more egregious forms of
subversion of the legal process.” Travelers Indem. Co., 761 F.2d at 1551-52.
To the extent Council is attempting to relitigate the merits of his underlying
employment-discrimination claims, his arguments are barred by the law-of-the-
case doctrine. Ash v. Tyson Foods, Inc., 664 F.3d 883, 891 (11th Cir. 2011)
(recognizing that, under the law-of-the-case doctrine, we are bound by findings of
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fact and conclusions of law that we made in an earlier appeal of the same case).
Accordingly, we affirm the district judge’s denial of Council’s motions for relief
from the judgment.
AFFIRMED.
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