Dobyns v. United States

United States Court of Appeals
for the Federal Circuit
______________________
JAY ANTHONY DOBYNS,
Plaintiff-Cross-Appellant
v.
UNITED STATES,
Defendant-Appellant
______________________
2015-5020, 2015-5021, 2017-1214
______________________
Appeals from the United States Court of Federal
Claims in No. 1:08-cv-00700-FMA, Senior Judge Francis
M. Allegra, Judge Patricia E. Campbell-Smith.
______________________
Decided: February 6, 2019
______________________
JAMES BERNARD REED, Baird Williams & Greer LLP,
Phoenix, AZ, argued for plaintiff-cross-appellant. Also rep-
resented by ANNELISE MARI DOMINGUEZ.
MARTIN F. HOCKEY, JR., Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellant. Also repre-
sented by ROBERT EDWARD KIRSCHMAN, JR., JOSEPH H.
HUNT.
______________________
Before LOURIE, BRYSON, and DYK, Circuit Judges.
2 DOBYNS v. UNITED STATES
DYK, Circuit Judge.
This is an action for breach of a 2007 settlement agree-
ment (“2007 agreement”) between the government and Jay
Anthony Dobyns. The Court of Federal Claims (“Claims
Court”) held that (1) the government breached the implied
duty of good faith and fair dealing in the 2007 agreement,
(2) Dobyns was entitled to emotional distress damages
from the breach, and (3) Dobyns was not entitled to relief
under Rule 60 of the Rules of the Court of Federal Claims
for alleged government misconduct. We reverse the Claims
Court’s judgment as to the breach of the implied duty and
affirm its Rule 60 decision.
BACKGROUND
The events leading up to the 2007 agreement began in
2003, when Dobyns, then an agent at the Bureau of Alco-
hol, Tobacco, Firearms and Explosives (“ATF”), was en-
gaged in undercover work for the investigation known as
Operation Black Biscuit. During this investigation, Dobyns
successfully infiltrated the Hells Angels Motorcycle Club
and assisted in the indictment of 36 people for racketeering
and murder charges. This led to numerous accolades for
Dobyns’ work, but the disclosure of his identity during the
criminal prosecutions also led to threats of death and vio-
lence against Dobyns and his family.
ATF’s alleged failure to appropriately respond to these
security threats from 2004 to 2007, and to provide ade-
quate support for concealing Dobyns’ and his family’s iden-
tity during an emergency relocation, led Dobyns to seek
compensation from the government. In 2007, Dobyns and
ATF settled their dispute. ATF agreed to pay Dobyns a
lump-sum and to “comply with all laws regarding or other-
wise affecting the Employee’s employment by the Agency.”
J.A. 332–33. The parties also agreed that the 2007 agree-
ment was integrated, “constitut[ing] the entire agreement
by and between the parties.” J.A. 333.
DOBYNS v. UNITED STATES 3
Neither the Claims Court nor Dobyns identifies any ex-
plicit threats that were made after the 2007 agreement.
However, ATF, allegedly in violation of the agreement,
withdrew Dobyns’ and his family’s fictitious identities,
completing that process in May 2008. ATF determined that
these fictitious identities were not required despite a 2007
threat assessment indicating that there were still concerns
about threats against Dobyns and his family. In 2013,
ATF’s Internal Affairs Division (“IAD”) released a report
concluding that there had been no valid reason for the
withdrawal of these fictitious identifies and that the safety
risks to Dobyns and his family had been ignored.
Subsequently, in August 2008, an act of arson substan-
tially damaged Dobyns’ home, but his family was able to
escape without injury. Following the arson, ATF, allegedly
in violation of the agreement, delayed its initial response,
persisted in pursuing Dobyns as a primary suspect, even
after evidence established his innocence, and mishandled
the manner in which information was disseminated to ATF
supervisors. In 2012 IAD released a report concluding that
the response to the arson at Dobyns’ residence had been
mismanaged, and ATF’s Professional Review Board pro-
posed that two of the employees responsible be removed
from federal service.
The agency actions concerning the withdrawal of the
identifications and the arson investigation were alleged to
breach the 2007 agreement because they were in violation
of internal agency “orders” and contrary to the 2007 agree-
ment’s implied duty of good faith and fair dealing.
Dobyns filed a complaint in the Claims Court on Octo-
ber 2008, alleging breach of the 2007 agreement. While the
suit was pending in 2009 Dobyns’ book, No Angel: My Har-
rowing Undercover Journey to the Inner Circle of the Hells
Angels, was released to the public, and Dobyns thereafter
made frequent media appearances to promote the book.
4 DOBYNS v. UNITED STATES
After a two week trial in 2013, the Claims Court held
that there was no breach of any express provision of the
2007 agreement, but that there was a breach of the implied
duty of good faith and fair dealing. This was based on the
government’s conduct discussed above, which the Claims
Court determined violated an implied duty in the 2007
agreement to “ensure the safety of Agent Dobyns and his
family” and, “secondarily, that ATF employees would not
discriminate against Agent Dobyns.” Dobyns v. United
States, 118 Fed. Cl. 289, 319 (2014). The Claims Court went
on to hold that, although Dobyns did not show economic
damages arising from this breach, Dobyns was entitled to
emotional distress damages. The Claims Court awarded
damages in the amount of $173,000.
After the Claims Court had entered final judgment,
and the government had filed its notice of appeal, the
Claims Court sua sponte issued an order voiding its judg-
ment based on concerns of potential government miscon-
duct. The government moved to vacate the order because
jurisdiction had already transferred to this court. The
Claims Court vacated its order. Dobyns then “request[ed]
that the [Claims] Court make an ‘indicative ruling’ pursu-
ant to Rule 62.1 of its intention to alter, amend or void the
judgment if vested with jurisdiction.” J.A. 754. In his mo-
tion, Dobyns sought to “set aside the judgment entered Au-
gust 28, 2014, based on [his] ability to prove that
Department of Justice (DOJ) attorneys engaged in unethi-
cal conduct intended to prejudice plaintiff’s rights.” J.A.
754. Dobyns contended that “further trial court proceed-
ings c[ould] determine if DOJ attorney misconduct preju-
diced the [Claims] Court’s factual findings or award, at
which plaintiff can produce evidence of DOJ’s misconduct.”
J.A. 758. Dobyns alleged incidents of misconduct known be-
fore judgment, including counsel’s alleged attempts to im-
properly influence the agency’s actions and witness
testimony, and incidents that became known after judg-
ment, involving alleged threats made against one of the
DOBYNS v. UNITED STATES 5
witnesses by another witness and defense counsel. The
Claims Court issued an indicative ruling noting that it
would investigate whether relief under Rule 60 would be
appropriate based on the alleged misconduct. Pursuant to
Rule 12.1 of the Federal Rules of Appellate Procedure, we
remanded the case to the Claims Court to determine
whether such relief was warranted but otherwise retained
jurisdiction.
The Claims Court appointed a special master to “make
findings assisting the assigned judge in determining
whether” Rule 60 relief was appropriate. J.A. 261. After
discovery and briefing, but without depositions, the special
master determined that none of the alleged acts of miscon-
duct warranted relief under Rule 60 because, even if they
occurred, there was no showing that these acts could have
affected Dobyns’ case. The Claims Court adopted the spe-
cial master’s report and recommendation, going through
each incident of alleged misconduct and finding that there
was no showing that they affected Dobyns’ ability to pursue
his case and no showing that they affected the Claims
Courts’ judgment.
The government appealed the Claims Court’s judgment
as to the breach of the implied duty of good faith and fair
dealing, and Dobyns cross-appealed the denial of Rule 60
relief. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
I. Rule 60 Proceedings 1
1 The same standard that applies to Rule 60 of the
Federal Rules of Civil Procedure applies to Rule 60 of the
Rules of the Court of Federal Claims. See Info. Sys. & Net-
works Corp. v. United States, 994 F.2d 792, 794–97 & n.3
(Fed. Cir. 1993).
6 DOBYNS v. UNITED STATES
In his appeal from the denial of Rule 60 relief, Dobyns
alleges incidents of misconduct that were known to the
court before judgment was entered, including defense coun-
sel’s alleged attempted improper interference with agency
actions and witness testimony, and also alleges incidents
that came to light after judgement was entered, involving
alleged witness intimidation by another witness and de-
fense counsel.
A Rule 60 movant must provide a sufficient “reason to
believe that vacating the judgment will not be an empty
exercise or a futile gesture.” Murray v. District of Colum-
bia, 52 F.3d 353, 355 (D.C. Cir. 1995) (collecting cases). The
fundamental problem with Dobyns’ Rule 60 claim is that
he does not actually seek to reopen the merits of the case
via Rule 60 proceedings. Although Dobyns seems to have
originally requested re-opening the merits in his motion for
an indicative ruling to secure a larger damages award, his
present position is that he does not want the judgment on
the merits re-opened. “What we don’t want the court to do,
and what we ask that the court not do, is open up the entire
proceeding and send it back down to the trial court . . . .”
Oral Arg. at 42:17–42:26; see Cross-Appeal Open. Br. 99
(requesting remand for the Rule 60 proceedings “for the ex-
clusive and limited purpose of allowing the completion of
discovery, including depositions and an evidentiary hear-
ing, regarding sanctions against the Justice Department”).
Dobyns seeks to reopen the judgment only to seek sanc-
tions and attorney’s fees. But Rule 60(b) cannot be used to
seek sanctions. “Rule 60(b) is available only to set aside a
prior order or judgment; a court may not use Rule 60 to
grant affirmative relief in addition to the relief contained
in the prior order or judgment.” James Wm. Moore, Moore’s
Federal Practice—Civil § 60.25 (3d ed. 2017); see Delay v.
Gordon, 475 F.3d 1039, 1045–46 (9th Cir. 2007); Adduono
v. World Hockey Ass’n, 824 F.2d 617, 620 (8th Cir. 1987);
United States v. $119,980, 680 F.2d 106, 107 (11th Cir.
1982); Rule 60(b) (“On motion and just terms, the court
DOBYNS v. UNITED STATES 7
may relieve a party . . . from a final judgment, order, or
proceeding . . . .”).
At oral argument, counsel for Dobyns also admitted
“[t]here was no request for sanctions made.” Oral Arg. at
30:00–30:03; see id. at 29:39–29:46 (“Q. Did you make a mo-
tion for sanctions in the . . . Court of Federal Claims? A.
Your Honor, we had not yet . . . .”). 2 Nor does Dobyns argue
it was error not to award sanctions. To the extent that
Dobyns argues Rule 60 was a necessary predicate to receiv-
ing sanctions, that argument is incorrect.
Courts typically retain jurisdiction to rule on collateral
issues, such as sanctions or attorney’s fees, even after they
lose jurisdiction over the merits decision. See Willy v.
Coastal Corp., 503 U.S. 131, 136–37 (1992); Cooter & Gell
v. Hartmarx Corp., 496 U.S. 384, 395–96 (1990)
(“[W]hether the attorney has abused the judicial process,
and, if so, what sanction would be appropriate” is a collat-
eral issue); In re Hewlett-Packard Co., 50 F.3d 20 (table),
1995 WL 101334, at *2 (Fed. Cir. Feb. 28, 1995) (un-
published).
Dobyns offers no reason why granting his Rule 60 mo-
tion would not be an empty exercise, and thus relief is not
warranted here.
II. Breach of Implied Duty of Good Faith and Fair Dealing
The Claims Court’s interpretation of a contract is a
question of law reviewed de novo, and factual determina-
tions are reviewed for clear error. Scott Timber Co. v.
United States, 692 F.3d 1365, 1371 (Fed. Cir. 2012).
Every contract, including one with the federal govern-
ment, imposes upon each party an implied duty of good
2 Instead, Dobyns’ sole theory with respect to sanc-
tions was that they could not be imposed unless the judg-
ment was first set aside under Rule 60. J.A. 289–91.
8 DOBYNS v. UNITED STATES
faith and fair dealing in its performance and enforcement.
Metcalf Constr. Co. v. United States, 742 F.3d 984, 990
(Fed. Cir. 2014) (quoting Restatement (Second) of Con-
tracts § 205 (1981)) (“Metcalf”). A party breaches the con-
tract when it fails to abide by this implied duty, which
includes “the duty not to interfere with the other party’s
performance and not to act so as to destroy the reasonable
expectations of the other party regarding the fruits of the
contract.” Centex Corp. v. United States, 395 F.3d 1283,
1304 (Fed. Cir. 2005). But “[t]he implied duty of good faith
and fair dealing cannot expand a party’s contractual duties
beyond those in the express contract or create duties incon-
sistent with the contract’s provisions.” Precision Pine &
Timber, Inc. v. United States, 596 F.3d 817, 831 (Fed. Cir.
2010) (“Precision Pine”). Instead, “any breach of that duty
has to be connected, though it is not limited, to the bargain
struck in the contract.” Metcalf, 742 F.3d at 994; see id. at
991 (“The implied duty of good faith and fair dealing is lim-
ited by the original bargain; it prevents a party’s acts or
omissions that, though not proscribed by the contract ex-
pressly, are inconsistent with the contract’s purpose and
deprive the other party of the contemplated value.”).
To be sure, “a breach of the implied duty of good faith
and fair dealing does not require a violation of an express
provision in the contract.” Id. (emphasis in original). But a
specific promise must be undermined for the implied duty
to be violated. For example, comment 1 to § 1-304 of the
Uniform Commercial Code (U.C.C.) notes that the “section
[on good faith] means that a failure to perform or enforce,
in good faith, a specific duty or obligation under the con-
tract, constitutes a breach.” U.C.C. § 1-304 cmt. 1 (empha-
sis added). “[T]he UCC ‘provides useful guidance in
applying general contract principles.’” Pac. Gas & Elec. Co.
v. United States, 838 F.3d 1341, 1351 (Fed. Cir. 2016)
(quoting Hughes Commc’ns Galaxy, Inc. v. United States,
271 F.3d 1060, 1066 (Fed. Cir. 2001)).
DOBYNS v. UNITED STATES 9
We have thus recognized that the duty must be “keyed
to the obligations and opportunities established in the con-
tract,” so as to not fundamentally alter the parties’ in-
tended allocation of burdens and benefits associated with
the contract. Lakeshore Eng’g Servs., Inc. v. United States,
748 F.3d 1341, 1349 (Fed. Cir. 2014); see also 2 E. Allan
Farnsworth, Farnsworth on Contracts § 7.17 at 358 (3d ed.
2004) (“[T]he duty of good faith must be connected to a duty
clearly imposed by the contract itself.”); Bradley v. Chiron
Corp., 136 F.3d 1317, 1326 (Fed. Cir. 1998) (noting that the
“implied covenants of good faith and fair dealing are lim-
ited to assuring compliance with the express terms of the
contract and can not be extended to create obligations not
contemplated in the contract.” (citing Racine & Laramie,
Ltd. v. Cal. Dep’t of Parks & Recreation, 11 Cal. App. 4th
1026 (Cal. Ct. App. 1992))).
For example, in Centex, we held that the later imposi-
tion of tax liability on payments the government made pur-
suant to an agreement “interfere[d] with the plaintiffs’
enjoyment of the benefits contemplated by the contract”
(i.e., it undermined the reasonably anticipated value of the
contracted-for government payments) and therefore consti-
tuted a breach of the implied duty. 395 F.3d at 1287–88,
1306. On the other hand, in Precision Pine, we held that
interference with the plaintiff’s ability to harvest timber
did not breach the implied duty in part because the govern-
ment “did not reappropriate any ‘benefit’ guaranteed by the
contracts, since the contracts contained no guarantee” of
uninterrupted performance. 596 F.3d at 828–29.
Here, the Claims Court concluded that “the essence of
the Settlement Agreement was to ensure the safety of
Agent Dobyns and his family—and, secondarily, that ATF
employees would not discriminate against Agent Dobyns.”
Dobyns, 118 Fed. Cl. at 319. This was apparently based on
parol evidence: testimony by Ronald Carter and Dobyns,
which indicated that the “protection of Agent Dobyns is in-
cluded with the expectation of Paragraph 10 of the
10 DOBYNS v. UNITED STATES
settlement agreement.” See, e.g., J.A. 10617. The Claims
Court further concluded that these duties were violated by
the government when it (1) “put[ ] Agent Dobyns at risk”
by withdrawing his, and his family’s, fictitious identities,
(2) failed to adequately and appropriately investigate the
arson at Dobyns’ residence, and (3) failed to provide a sys-
tematic overhaul of ATF’s procedures and processes to
avoid recurrence of the ATF’s pre-2007 security lapses re-
lating to Dobyns. Dobyns, 118 Fed. Cl. at 319–21.
The flaw with the Claims Court’s analysis is that the
supposed duties (ensuring Dobyns’ security and not dis-
criminating against him) are not duties imposed by the lan-
guage in the contract. Parol evidence by Carter and Dobyns
cannot add additional provisions to the contract, particu-
larly in light of the integration clause. Parol evidence can-
not be used to “add to or otherwise modify the terms of a
written agreement in instances where the written agree-
ment has been adopted by the parties as an expression of
their final understanding.” TEG-Paradigm Envtl., Inc. v.
United States, 465 F.3d 1329, 1338–39 (Fed. Cir. 2006)
(quoting Barron Bancshares, Inc. v. United States, 366 F.3d
1360, 1375 (Fed. Cir. 2004)); see Barron Bancshares, 366
F.3d at 1375 (“The rule thus renders inadmissible evidence
introduced to modify, supplement, or interpret the terms of
an integrated agreement.”). 3 Without grounding the sup-
posed duties in the specific provisions of the contract, the
Claims Court imposed a vague duty of “ensur[ing] the
safety of Agent Dobyns and his family” on the government
3 Although parol evidence may be useful to deter-
mine party expectations relating to particular contract pro-
visions, it cannot be the source of an additional duty. See,
e.g., Centex Corp., 395 F.3d at 1288 (looking to the govern-
ment’s representations to understand plaintiff’s reasonable
expectations relating to the anticipated benefit of con-
tracted government payments).
DOBYNS v. UNITED STATES 11
as well as non-discrimination. Dobyns, 118 Fed. Cl. at 319.
These obligations went well beyond those contemplated in
the express contract and altered the contractual allocation
of the burdens and benefits. See Precision Pine, 596 F.3d at
831.
It is true that the alleged grievances that led to the
2007 agreement were based on ATF’s security failures re-
lating to Dobyns’ safety. But here, as we discuss below,
there were no future promises regarding how the govern-
ment would ensure the safety of Dobyns and his family, ex-
cept the government agreed that “[s]hould any threat
assessment indicate that the threat to the Employee and
his family has increased from the assessment completed in
June 2007, the Agency agrees to fully review the findings
with the Employee and get input from the Employee if
transfer is necessitated.” J.A. 330. There is no claim here
that this provision was undermined by the government’s
actions.
Inferring an implied duty based on the supposed pur-
pose of the 2007 agreement, without a tether to the con-
tract terms, would fundamentally alter the balance of risks
and benefits associated with the 2007 agreement and can-
not be the basis of a claim for breach of the implied duty of
good faith and fair dealing. Because the Claims Court’s
judgment was not based on the government undermining
any specific promise of the 2007 agreement, we conclude
that the judgment for breach of the covenant of good faith
and fair dealing cannot be sustained.
III. Breach of Express Contract Terms
Dobyns also relies on an alternative theory that the
government actions also constituted breach of express con-
tract terms that obligated the government to comply with
agency “orders.” The agency orders at issue are not money
mandating. Instead, the remedy for violations of these or-
ders is generally limited to internal remedies (e.g., com-
plaint to the Office of Inspector General). Dobyns claims he
12 DOBYNS v. UNITED STATES
is uniquely able to pursue a monetary remedy for violations
of these orders because of the 2007 agreement. But judg-
ment cannot be sustained on the alternative ground that
there was an express breach of paragraph 10 of the 2007
agreement.
Paragraph 10 states:
10. This Agreement does not constitute an admis-
sion by the Agency or Employee of any violation of
law, rule or regulation or any wrongful acts or
omissions. The Agency agrees that it will comply
with all laws regarding or otherwise affecting the
Employee’s employment by the Agency.
J.A. 332–33 (emphasis added). Dobyns argues that the
term “all laws” includes particular internal ATF orders,
covering a variety of topics including procedures for opera-
tional security as well as investigative protocols. See
Dobyns, 118 Fed. Cl. at 314–15 & n.41. He argues that the
purpose of the 2007 agreement and the ATF orders were
violated by the same government conduct that was the ba-
sis of the Claims Court’s holding as to the breach of the
implied duty.
The Claims Court concluded that there was no breach
of paragraph 10. It found that the earlier sentence in par-
agraph 10 demonstrates that “all laws” do not include the
agency’s rules, regulations, and orders. In paragraph 10,
the 2007 agreement distinguishes between a “law, rule or
regulation.” Additionally, in paragraph 6, the 2007 agree-
ment refers to “Agency practice and procedure.” These dis-
tinct uses of the terms law, rule, regulation, agency
practice and procedure in the 2007 agreement indicate that
the parties assigned different meanings to these terms.
The Claims Court also determined that Dobyns’ claim that
paragraph 10 included more than a dozen ATF orders was
belied by the requirement that “language used in a contract
to incorporate extrinsic material by reference must explic-
itly, or at least precisely, identify the written material
DOBYNS v. UNITED STATES 13
being incorporated and must clearly communicate that the
purpose of the reference is to incorporate the referenced
material into the contract.” Northrop Grumman Info.
Tech., Inc. v. United States, 535 F.3d 1339, 1345 (Fed. Cir.
2008). We agree with the Claims Court’s conclusion that
the express language of the 2007 agreement does not admit
of Dobyns’ construction of “all laws.” Although it is possible
that in certain circumstances “all laws” could include
agency regulations and guidelines, here the contract is
clear on its face that it does not include ATF regulations
and orders.
Dobyns’ response is twofold. First, he relies on witness
testimony that allegedly equated ATF orders with “all
laws.” One of the ATF negotiators of the 2007 agreement
(Carter) gave contradictory testimony in this respect. For
example, Carter responded to the question “if there was an
ATF order that governed how ATF investigated threats
against its employees, would that be included within the
Agreement,” with “Yeah, I would say so.” J.A. 10486. But
Carter also testified that he did not “see laws and ATF or-
ders being the same thing. . . . ATF orders aren’t laws.” J.A.
10468.
Dobyns also relies on the understanding of other
agency employees who equated ATF orders with laws. See,
e.g., J.A. 15083 (“Q. Okay. But are ATF orders essentially
for operating purposes of ATF the laws of the Agency? A.
Yes.”); J.A. 11362 (“Q. And in your experience at ATF, are
ATF orders the laws of the agency? A. Yes, sir.”); J.A.
12732–73 (“Q. What do ATF orders mean to you as you un-
derstand them in the carrying out of your daily duties?
A. . . . [T]hey are the law of the land at ATF.”).
In light of the contract’s language, and in light of the
authority discussed above, Dobyns cannot rely on parol ev-
idence to vary the terms of the agreement.
Second, Dobyns relies on the government’s response to
Requests for Admission as admitting that the contract
14 DOBYNS v. UNITED STATES
incorporated additional regulations. For example, Request
for Admission No. 12 and the government’s response
stated:
Request No. 12. Admit that, with respect to Para-
graph Ten of the [2007] Settlement Agreement,
ATF had an obligation to protect the physical
safety of Plaintiff during his period of his employ-
ment with ATF.
Response. Admits to the extent that the obligation
identified in the request, pursuant to the language
of paragraph 10, is established by statute, regula-
tion, or ATF Order. Paragraph 10 of the Settlement
Agreement provides, in relevant part, that “[t]he
Agency agrees that it will comply with all laws re-
garding or otherwise affecting the Employee’s em-
ployment with the Agency.” ATF Order 3040.1A
and ATF Order 3040.2A, in turn, provide the
agency’s guidelines and procedures for the report-
ing, investigating, evaluating, and handling of
threats that could potentially impact the physical
safety of Mr. Dobyns during his employment with
ATF. Except as expressly admitted, the request is
denied.
J.A. 1992–93. 4
4 Dobyns also relies on the government’s response to
Request No. 5:
Request No. 5. Admit that ATF has an obligation
to protect the physical safety of ATF agents during
their period of employment with ATF from external
threats of violence and intimidation.
Response. Admits to the extent that the obligation
referred to in the request arises from statute,
DOBYNS v. UNITED STATES 15
Although the government’s responses are badly
drafted, at the end of the day they do not support Dobyns’
argument. The admissions do not say that the government
agreed ATF orders were to be included under the “all laws”
language. Instead, they merely note that “to the extent”
paragraph 10 were interpreted to cover more than statu-
tory laws, the specific orders cited in the response provided
the “agency’s guidelines and procedures for reporting, in-
vestigating, evaluating, and handling of threats that could
potentially impact the physical safety of Mr. Dobyns during
his employment with ATF.”
CONCLUSION
We reverse the Claims Court’s judgment on liability
and affirm the Claims Court’s rejection of Dobyns’ motion
for relief under Rule 60.
AFFIRMED-IN-PART AND REVERSED-IN-PART
COSTS
No costs.
regulation, or ATF Order. ATF Order 3040.1A and
ATF Order 3040.2A provide the agency’s guidelines
and procedures for reporting, investigating, evalu-
ating, and handling external threats of violence
and intimidation made against agents or the family
members of agents. Except as expressly admitted,
the request is denied.
J.A. 1989–90. Although the government admitted the obli-
gation to comply with ATF orders, this response does not
refer to obligations arising from the 2007 agreement.