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A federal appeals court has rejected an appeal by a team of lawyers from Drinker Biddle & Reath who argued that recently declassified documents proved that military officials “lied” to the courts to hide documents in a 1949 lawsuit brought by three widows of civilian engineers who died in the crash of a B-29 bomber. The decision in Herring v. United States announces an extremely difficult test for proving a “fraud upon the court.” Writing for a unanimous three-judge panel, Senior 3rd Circuit Judge Ruggero J. Aldisert found that “the concept of fraud upon the court challenges the very principle upon which our judicial system is based: the finality of a judgment.” As a result, Aldisert concluded that “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 the original suit, the widows suing under the Federal Tort Claims Act were represented by attorney Charles J. Biddle seeking compensation for the deaths of their husbands in an October 1948 crash of a B-29 bomber in Waycross, Ga. The civilian engineers were aboard the flight because they were assisting the Air Force with the development and testing of sophisticated electronic guidance systems. But when Biddle demanded access to an Air Force report on the accident, the government refused to turn it over, arguing that the “military secrets” in the report were so sensitive that they could not even allow U.S. District Judge William Huntington Kirkpatrick to review it in camera. Kirkpatrick (who died in 1970) decided that since the government was refusing to turn over the report, the widows were entitled to judgment on liability. He then awarded them $225,000. The 3rd U.S. Circuit Court of Appeals upheld that ruling. But the Supreme Court reversed and sent the case back to Kirkpatrick, ordering that he reconsider whether the government’s claim of privilege should be granted. The justices held that the government could withhold the records — even from a federal judge — if national security was at stake. Before Kirkpatrick ruled, however, the widows settled their claims for 75 percent of the original verdict, or $170,000. Nearly 50 years later, Judith Palya Loether, a daughter of one of the widows, obtained the declassified report and said she was astonished to find that it contained nothing approaching a military secret. A team of lawyers from Drinker Biddle took the unusual step of asking the Supreme Court to reopen the case by filing a petition for a writ of error coram nobis. After the Supreme Court rejected the petition, the Drinker Biddle lawyers — Wilson M. Brown III and Jeff A. Almeida — filed suit in U.S. district court demanding that the 50-year-old settlement agreement be set aside on the grounds that it was procured by a “fraud upon the court.” The suit alleged that the declassified report showed that it contained no military secrets, and instead was “no more than an account of a flight that, due to the Air Force’s negligence, went tragically awry.” As a result, the suit alleged, “in telling three federal courts otherwise by way of sworn affidavits, the Air Force lied.” The 2003 suit demanded more than $1.1 million in damages. Brown argued that a fair measure of the damages would be the difference between the $225,000 that the widows were originally awarded and the $170,000 they later settled for. With interest compounded since 1951, Brown argued, that figure — $55,000 — would be worth $1.14 million today. But U.S. District Judge Legrome D. Davis dismissed the suit, finding that the plaintiffs had failed to prove a fraud on the courts. “Though the plaintiffs argue that the Air Force deliberately hid its obvious negligence behind fraudulent affidavits, disclosure of this now seemingly innocuous report would reveal far more than the negligence plaintiffs read,” Davis wrote. “It may have been of great moment to sophisticated intelligence analysts and Soviet engineers alike. � Viewed against this political and technical backdrop, it seems that the accident investigation report may have reasonably contained sufficient intelligence, if not about the secret equipment or mission, then about ongoing developments in Air Force technical engineering, to warrant an assertion of the military secrets privilege,” Davis wrote. Now the 3rd Circuit has upheld Davis’ rulings and announced an extremely strict test for proving a claim of fraud on the court. Aldisert found that 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 bar, Aldisert found, must be set very high. “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,” Aldisert wrote in an opinion joined by Circuit Judges Samuel A. Alito Jr. and Franklin S. Van Antwerpen. Aldisert found that the key claim in the suit was that the “purportedly top secret” documents for which the government claimed a military secrets privilege “did not actually reveal anything of a sensitive nature.” In pressing a claim of fraud on the courts, Aldisert said, the plaintiffs were alleging that Air Force officers “fraudulently misrepresented the nature of the report in a way that caused the widows to settle their case for less than its full value.” Aldisert found that the court’s task was to decide whether the Air Force’s assertion of military secrets privilege over the accident report was premised on a fraud. “In order to do this we look carefully at two documents central to the original litigation: the formal affidavit and claim of privilege filed by then-Secretary of the Air Force, Thomas K. Finletter and an affidavit of then-Judge Advocate General of the Air Force, Reginald Harmon.” Aldisert found that since both of the affidavits were made by lawyers, they satisfied at least one prong of the test. But Aldisert concluded that the plaintiffs failed in arguing that the affidavits amounted to perjury. Although the plaintiffs insisted that the accident report includes no military secrets, Aldisert found that the two affidavits “can be reasonably read to assert privilege over technical information about the B-29.” As a result, Aldisert concluded that the plaintiffs fraud on the court claim “falls apart.” “Because there is an obviously reasonable truthful interpretation of the statements made by the Air Force, appellants are unable to make out a claim for the perjury which � forms the basis for their fraud upon the court claim,” Aldisert wrote. Plaintiffs attorney Brown was assisted in the appeal by Drinker Biddle attorneys Lori J. Rapuano and Angie Halim. Justice Department attorney August E. Flentje argued the case for the government.

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