Cross references to FRCP 60 Commentaries:

1. "Motion [or Relief from the Judgment," ch. 10-F, p. 473;
2. "Motion to Correct Clerical Error in Judgment," ch. 10-1, p. 485
3. O'Connor's Federal Forms · Civil Trials, FORMS 10F, 101(1996).

Source of FRCP 60: As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff Aug. 1, 1987.

CASELAW:

See, e.g., In re Hunter, 66 F.3d 1002, 1005 (9th Cir.1995); Robinson v. Volkswagenwerk AC, 56 F.3d 1268, 1273-74 (lOth Cir.1995); Hadges u. Yonkers Racing Corp., 48 F.3d 1320, 1325 (2d Cir.1995). (If the error is substantive, a party may challenge an error in the judgment by filing an "independent action" for relief from judgment. FRCP 60(b) does not limit the power of a court to entertain an independent action.)

Barrett v. Secretary of H.&H.S., 840 F.2d 1259, 1263 (6th Cir.1987); Carteret S. & L Ass'n v. Jackson, 812 F.2d 36, 39 n.6 (1st Cir.1987); Southmark Prop. v. Charles House Corp., 742 F.2d 862, 872 n.l4 (5th Cir.1984) (The standard for obtaining relief in an independent action is even more stringent than the standard for obtaining relief under FRCP 60(b). To maintain an independent action for relief from judgment, the movant must show that (1) a judgment was entered which ought not, in equity and good conscience, be enforced; (2) the movant has a good defense to the cause of action on which the judgment is founded; (3) the movant was prevented by fraud, accident, or mistake from obtaining the benefit of its defense; (4) the movant was not at fault or negligent; and (5) the movant has no adequate remedy at law.)

Geo. P. Reintjes Co., v. Riley Stoker Corp., 71 F.3d 44, 47 (1st Cir.1995);(An independent action lies only for extrinsic fraud, not intrinsic fraud.)

Robinson v. Volkswagenwerk AC, 56 F.3d 1268, 1274 n.6 (10th Cir.1995); Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1552 (11th Cir.1985). (...explaining type of fraud necessary to obtain relief from a fraudulently obtained judgment.)

Pumphrey v. K. W. Thompson Tool Co., 62 F.3d 1128, 1130 (9th Cir.1995). (FRCP "60(b) provides that a judgment may be set aside for fraud upon the court. One species of fraud upon the court occurs when an 'officer of the court' perpetrates fraud affecting the ability of the court or jury to impartially judge a case. At 1132-33: '[T] he inquiry as to whether a judgment should be set aside for fraud upon the court under Rule 60(b) focuses [on] whether the alleged fraud harms the integrity of the judicial process."')

Russell v. Delco Remy Div., 51 F.3d 746, 749 (7th Cir. 1995). (FRCP 60(b) "enables a court to grant relief from a judgment under the particular circumstances listed in the text of the rule.... Rule 60(b) ... was designed to address mistakes attributable to special circumstances and not merely to erroneous applications of law. [Paragraph] Rule 60(b) ... is not an appropriate vehicle for addressing simple legal error, otherwise a party could circumvent the ordinary time limitation for filing a notice of appeal.")

Information Sys. & Networks Corp. v. U.S., 994 F.2d 792,795 (Fed. Cir.1993); Azzopardi v. Ocean Drilling & Expl. Co., 742 F.2d 890, 895 (5th Cir.1984) (Most of the cases in which the courts actually grant relief under Rule 60(b) involve default judgements.)

See, e.g, Cavaliere, 996 F.2d at 1115; see 11 Wright & Miller §2857 (1995) (...only in extraordinary circumstances.)

REQUIRED ELEMENTS:

1. A judgment was entered which ought not, in equity and good conscience, be enforced.
2. Plaintiff has a good defense to the cause of action on which the judgment is founded.
3. Plaintiff was prevented by fraud from obtaining the benefit of its defense.
4. Plaintiff was not at fault or negligent.
5. Plaintiff has no adequate remedy at law.

1. A judgment was entered which ought not, in equity and good conscience, be enforced.

   a. The stated intent of Congress' qui tam changes in 1986 was to:

   1. ...induce persons with fraud knowledge to come foward, early;
   2. ...induce persons with fraud knowledge to file suit;
   3. ...induce persons with fraud knowledge to help recover for the public fisc;
   4. ...secure qui tam relator's award rights;
   5. ...increase rewards to successful qui tam plaintiffs;
      b. Qui Tam co-plaintiffs are in statute defined, equity agreement.
      1. Government's standing contract "offer" is defined in 31 USC 3729-3733.
      2. Unilateral contract performance "acceptance" is initiated by filing of suit by relator.
      3. Mandatory language of FCRA86 defines relator's award and "chooses in action":
         • Successful relator is entitled to at least 15% minimum of the entire fraud recovery.
         • Successful relator is also legislated an additional 0-10% of the entire recovery, for the relator's participation or contribution to the successful litigation of the case.
         • Plaintiff is legislated a court cost, expenses, and attorney's fees.

2. Plaintiff has a good defense to the cause of action on which the judgment is founded.

   a. DOJ never confirmed Plaintiff's success as qui tam relator.
   b. DOJ obtained extensions by misrepresentation, false statements, inticement and threats.
   c. Case was sealed from 05/09/88 until 07/10/90.
   d. DOJ trial attorney was Plaintiff's only source of information while case was sealed.
   e. DOJ limited Plaintiff's involvement in settlement negotiations.
   f. DOJ was obligated by statute and law to disclose and include all fraud recovery in relator's award but did not.

3. Plaintiff was prevented by fraud from obtaining the benefit of its defense.

   a. DOJ trial attorney was obligated to comply with False Claims Reform Act of 1986.
   b. DOJ trial attorney was obligated to tell the truth.
   c. DOJ trial attorney was obligated to avoid Brady violations.

4. Plaintiff was not at fault or negligent.

   a. Government paid Ballew $2.2 million as a successful qui tam relator.
   b. Government provided all information while case was sealed.
   c. Government induced Ballew's waiver and release on their statements.

5. Plaintiff has no adequate remedy at law.

   a. Statute of limitations has passed on F.R.Civ.P. 59 and 60(a).
   b. No one has jurisdiction over FCA suits but District Court.
   c. Case was dismissed with prejudice by this court.
   d. Government had an obligation to disclose all material facts required for relator to protect his secured rights, but did not.
   e. Congressional intent was clear and could not be misunderstood by the agency, the DOJ or the Courts. The mandatory term "shall" was used more that 35 times in the text of the law. Any changes to this by the DOJ and Courts would seem to be an obvious aggrandizement of their separate powers and an massive encroachment on the powers of Congress in regards to the separation of powers under the Constitution.
   f. District Courts have repeatedly caught the DOJ in these rotten acts, but neither you nor I, as taxpayers or citizens, have any "standing" to stop these actions