Case 1:08-cv-00700-PEC Document 430 Filed 07/23/15 Page 1 of 3

In the United States Court of Federal Claims

No. 08-700C
FILED UNDER SEAL
(Filed: July 23, 2015)
JAY ANTHONY DOBYNS,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

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FINAL REPORT AND RECOMMENDATION

The undersigned special master was appointed to investigate allegations of fraud
upon the court in this case under Rule 60 of the Rules of the Court of Federal Claims and
other grounds for relief from final judgment, if necessary. See Order, ECF No. 334;
Order, ECF No. 335. By my Opinion and Order of April 7, 2015, I identified facts not in
dispute and narrowed the issues for my investigation. ECF No. 348; see also Opinion
and Order on Reconsideration, May 4, 2015, ECF No. 371. Therein, I laid out the legal
standards for a finding of fraud upon the court or fraud by a party in the context of a Rule
60 motion. Opinion and Order of April 7, 2015, at *58. After a period of discovery
wherein defendant produced hundreds of documents to plaintiff and claimed various
privileges as to others, I issued a ruling as to the applicability of the alleged privileges.
Opinion and Order of June 19, 2015, ECF No. 406. As a result, defendant was ordered to
produce all but a small number of relevant documents. Id. at *20. Thereafter, I identified
additional uncontested facts brought to bear by the documents produced to plaintiff and
to the special master. Opinion and Order of June 26, 2015, ECF No. 411. Based upon
those facts, I ruled that there could not have been fraud upon the court, or fraud by a
party, which impacted the judgment in this case. Id. Nevertheless, I gave plaintiff one
final opportunity to show cause why these proceedings should not be concluded
immediately. Id. Having received plaintiffs response to that order and defendants
reply, I provide herein my final report and recommendation. As explained below, I find
no evidence of fraud upon the court or fraud by a party.

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By my Opinion and Order of June 26, 2015, I directed plaintiff to address the only
remaining issue in this case: how could plaintiff succeed upon his claim that alleged
threats against a witness named Trainor constituted a fraud upon the court or fraud by a
party, justifying the granting of his motion under Rule 60 to set aside the judgment, when
Trainors testimony was completely unaffected by the alleged threats, and when the court
credited Trainors testimony when there was a disagreement among Trainor and his
colleagues in the Bureau of Alcohol, Tobacco, Firearms and Explosives. Opinion and
Order of June 26, 2015, at *910.
Instead of answering that question, plaintiff filed a 60-page document, most of
which is devoted to asking me to re-visit the determinations I have already made. This I
will not do.
As to the issue I directed be briefed, plaintiff relies upon the premise that a
showing of prejudice to a party is not necessary to vacate a judgment.1 See Plaintiffs
Response to the June 26, 2015 Opinion and Order at *3641, ECF No. 420. He asks that
the special master hear evidence pertaining to his allegations of improper behavior by the
Department of Justice,2 and, having concluded that it occurred, recommend monetary
sanctions. See id. at *134.
Plaintiff fails to understand that he moved to set aside the judgment, and it follows
that if there were fraud upon the court or by a party, his motion would be granted, the
judgment would be set aside, and this case would be set down for a new trial.
Understandably, plaintiff does not really want that resulthe won. Instead, and
preferring to eat his cake and have it still, he would keep the judgment but have added to
it monetary sanctions.3 That seems to mean that plaintiff is abandoning his motion to set
aside the judgment, now wants to keep it, but have more money added to it.
The only motion before the court was a motion to set aside the judgment, see ECF
No. 313, and its resolution defines the parameters of the special masters functions.
Since I have concluded that there must be a showing that the alleged fraud affected the
1

I have applied the following standard: [P]laintiff in this case must have alleged with specificity how the
allegedly fraudulent behavior did in fact impact the judgment to justify further investigation of the alleged
fraud. Opinion and Order of April 7, 2015, at *58.
2
Because the special master has now determined that the alleged misconduct had no impact on the
judgment in this case, further discovery is inappropriate. See Roger Edwards, LLC v. Fiddles & Son,
Ltd., 427 F.3d 129, 137 (1st Cir. 2005).
3
As the government correctly points out, the only relief permitted under Rule 60 is to set aside the
judgment. Adding additional relief to the judgment is improper. Defendants Reply to Plaintiffs
Response to the June 26, 2015 Opinion and Order at *15, ECF No. 424 (citing United States v. $119,
980.00, 680 F.2d 106, 10708 (11th Cir. 1982); Adduono v. World Hockey Assn, 824 F.2d 617, 620 (8th
Cir. 1987)).

Case 1:08-cv-00700-PEC Document 430 Filed 07/23/15 Page 3 of 3

judgment before a motion to set aside the judgment may be granted, and plaintiff has not
and cannot show that effect, the special masters responsibility has ended. Plaintiff can
attempt to convince any court that reviews my work that the special master was wrong in
requiring a showing that the alleged fraud affected the judgment as a condition of
granting plaintiff relief under Rule 60 (assuming that plaintiff still wants to set aside the
judgment in his favor). Then, if he prevails, demonstrates fraud, and a new trial is
ordered, the matter of his entitlement to damages, including sanctions for the government
lawyers improper behavior, if any, can proceed from there.
If, on the other hand, he fails, and the judgment is not set aside, he could seek
from the presiding judge an award of sanctions, even though he did not prevail on his
motion. Whether he ever gets that award remains to be seen. But, what is clear now is
that the special masters responsibilities begin and end with the resolution of the Rule 60
motion that plaintiff filed. As I have had to remind plaintiff on several occasions, the
special master does not have a roving commission to explore the behavior of the
government lawyers or to assess its ethical propriety. Instead, now that I have concluded
that plaintiff cannot possibly show that the judgment he obtained was affected by the
behavior about which he complains, I must also conclude that the motion, setting aside
the judgment on the grounds of either fraud upon the court or fraud by a party, should be
denied. With that determination and recommendation, I complete my responsibilities.

s/John M. Facciola
JOHN M. FACCIOLA
Special Master