United States District Court, E.D. Tennessee, Greeneville Division
Jordan United States District Judge
matter is before the Court on the United States' Motion
to Dismiss [doc. 16], the United States' Brief in Support
of the Motion [doc. 17], and Plaintiff's Response [doc.
19]. For the reasons herein, the Court will grant the United
se plaintiff, Roger Elliott (“Mr. Elliott”)
brings this suit as a “Motion to Set Aside a Judgment
for Fraud on the Court.” [Compl., doc. 1, ¶ 1].
Specifically, he petitions this Court, under Federal Rule of
Civil Procedure 60(d)(3),  to set aside a judgment from the United
States District Court for the Eastern District of Virginia
and the United States Court of Appeals for the Fourth
Circuit. [Id.]. He alleges that Defendants-in a
defunct case in which he was a party before these
courts-participated in a “scheme to directly subvert
the judicial process by forever preventing due
process.” [Id. ¶¶ 1, 5]. In this
vein, he claims that Defendants “fabricated” its
reason for terminating his employment with the Federal
Deposit Insurance Corporation (“FDIC”).
[Id. ¶ 1]. The United States now requests the
dismissal of this action for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
and for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). [Defs.' Br. at 6-10, 11-16].
Federal Rule of Civil Procedure 8(a)(2), “[a] pleading
that states a claim for relief must contain . . . a short and
plain statement of the claim showing that the pleader is
entitled to relief.” In determining whether to dismiss
a complaint under Rule 12(b)(6), a court accepts the factual
allegations in the complaint as true and construes them in a
light most favorable to the non-moving party. See Mixon
v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999). In cases in
which a plaintiff is acting pro se, a court must
“liberally construe” the pleading and not
reject it because it is “unartfully pleaded.”
See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quotation omitted); but cf. McNeil v. United
States, 508 U.S. 106, 113 (1993) (“[W]e have never
suggested that procedural rules in ordinary civil litigation
should be interpreted so as to excuse mistakes by those who
proceed without counsel.” (footnote omitted)).
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions, ” however, and “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). In addition, “[t]o survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
considering a motion to dismiss, the Court ordinarily may not
look outside the complaint, but it does have license to take
judicial notice of matters outside the complaint and will do
so in this case. In re Unumprovident Corp. Secs.
Litig., 396 F.Supp.2d 858, 873 (E.D. Tenn. 2005). The
FDIC terminated Mr. Elliott in 1999 “for falsification
of official documents, failure to follow supervisory
instructions, inappropriate or disrespectful conduct, and
absence without leave on two occasions.” Elliott v.
FDIC, 305 F.Supp.2d 79, 81 (D.D.C. 2004). Mr. Elliott
appealed the FDIC's decision to the Merit Systems
Protection Board (“MSPB”), which upheld his
termination. Id. at 81-82.
pro se, he then appealed the MSPB's final order to the
Eastern District of Virginia, which dismissed his appeal.
Id. Next, he filed an appeal with the Fourth
Circuit, which affirmed the district court's decision.
Id. at 82; Elliott v. FDIC, No. 01-1771
(4th Cir. Oct. 17, 2001). The Supreme Court denied his
petition for certiorari. Elliott v. FDIC, No.
01-1771 (4th Cir. Oct. 17, 2001), cert. denied, 535
U.S. 989 (2002). He has since filed actions in other federal
courts, attacking the legitimacy of his termination in
various ways-without success. See Elliott v. FDIC,
306 F. App'x 565 (Fed. Cir. 2009); Elliott v.
Chairman of U.S. Merit Sys. Prot. Bd., No. 2:05-0115,
2006 WL 288161 (M.D. Tenn. Feb. 3, 2006); Elliott v.
FDIC, 305 F.Supp.2d 79 (D.D.C. 2004). This Court is now
the latest recipient of one of Mr. Elliott's suits.
initial matter, the Court's ability to exercise subject
matter jurisdiction over this case-which, according to Mr.
Elliott's allegations, derives from proceedings before
the Eastern District of Virginia and the Fourth Circuit-is
dubious. See Laues v. Roberts, 2015 WL 1412631, at
*4 (E.D. Mich. Mar. 25, 2015) (“[T]his Court has no
jurisdiction to upset or review a past judgment issued by
another District Court[.]” (quotation omitted));
cf. Howat v. Kansas, 258 U.S. 181, 190 (1922)
(“It is for the court of first instance to determine
the question of the validity of the law, and until its
decision is reversed for error by orderly review, either
by itself or by a higher court, its orders based on
its decision are to be respected[.]” (emphasis added));
Moses v. Bus. Card Express, Inc., 929 F.2d 1131,
1136 (6th Cir. 1991) (“We have no appellate
jurisdiction over decisions of district courts outside the
Sixth Circuit.” (citations omitted)); see also
Lapin v. Shulton, Inc., 333 F.2d 169, 172 (9th Cir.
1964) (“[C]omity and orderly administration of justice
demand that the nonrendering court should decline
jurisdiction of [a Rule 60(b)] action and remand the parties
for their relief to the rendering court[.]”); but
see Standard Oil Co. of Cal. v. United States, 429 U.S.
17, 18-19 (1976) (abolishing the appellate-leave requirement
by holding that a district court, to address a Rule 60(b)
motion, does not first have to request permission from the
appellate court that affirmed the judgment); Nobrega v.
Hinkle, 576 F. App'x 224, 224 (4th Cir. 2014)
(describing the abrogation of the appellate-leave requirement
as “well settled” (citing id. at
17-19)); In re Sun Valley Foods Co., 801 F.2d 186,
189 (6th Cir. 1986) (acknowledging that a federal district
court may review a state court judgment if a party
claims that it arose through fraud).
Court has no need to delve into this grainy issue-that is,
into the specific issue of whether a district court
in one jurisdiction can entertain an independent action under
Rule 60(d)(3) to rescind another court's judgment-because
Mr. Elliott does not plead sufficient facts to undergird his
claim. “[F]raud upon the court . . . embrace[s] only
that species of fraud which does or attempts to,  subvert
the integrity of the court itself, or  is a fraud
perpetrated by officers of the court so that the judicial
machinery cannot perform in the usual manner[.]”
Gen. Med., P.C. v. Horizon/CMS Health Care Corp.,
475 F. App'x 65, 71 (6th Cir. 2012) (quoting
Demjanjuk v. Petrovsky, 10 F.3d 338, 352 (6th Cir.
1993)). More specifically, a claim for fraud upon the court
consists of five elements:
[C]onduct: (1) On the part of an officer of the court; (2)
That is directed to the “judicial machinery”
itself; (3) That is intentionally false, wilfully blind to
the truth, or is in reckless disregard for the truth; (4)
That is a positive averment or is concealment when one is
under a duty to disclose; (5) That deceives the court.
Workman v. Bell, 245 F.3d 849, 852 (6th Cir. 2001)
(quotation omitted). Mr. Elliott seems to implicate a witness
in the underlying litigation as the perpetrator of the
alleged fraud upon the court, having filed excerpts of an
unspecified deposition-which appears to be that of his former
supervisor. [Dep. Tr., doc. 1-1]. Mr. Elliott seems to
believe that this testimony ...