Laws In Texas

Fifth Circuit Affirm Disbarment of Texas Lawyer Ryan Ray from Local Federal Court. The Appellate Court Had Been Duped by Ray Previously.

The court finds that Texas Lawyer Ryan E. Ray engaged in intentional conduct, involving dishonesty, fraud, deceit, and misrepresentation.

LIT COMMENTARY

We’d like to acknowledge United States District Judge John McBryde’s intuition from the bench that he and his court were being deceived by this rogue lawyer and his client(s). His ‘gut’ was right and later assisted by new information from RSI Staffing, he was proven true to his word that fraud was being perpetrated before his court. He then adhered to his judicial code of conduct and ‘black robe’ canons and issued a terminal sanction for the misdeeds and untruths by lawyer Ryan Eugene Ray, who stood before not only the lower court, but appealed to Fifth successfully, based on lies and untruths.

Secondly, we also respect the Fifth Circuit judges in both panels who refused to be swayed by ‘attorney immunity’ where there is clear evidence of fraud on the court and the opposing party. It’s a big ole Texas hat tip from us to y’all.

That said, we don’t think this attorney should be able to practice in Texas. Period. As it stands Ray’s attorney profile on Texas Bar’s website indicates he is in “good standing” at the Fifth Circuit and Eastern District (after being disbarred by Northern District). Have y’all gone far enough? We think not, given the egregious acts by this rogue and dishonest Texas lawyer and the fact Ray’s on a school board. That’s not good.

After a Failed 2018 Election Bid for Texas House of Representatives (Democratic Party), Ray Won Election (Unopposed) for the Crowley ISD Board in May 2019

The question is, does the School,  the Board and more importantly, the Parents know they have a very dishonest person on the School Board? He should be removed immediately.

Texas Lawyer’s Disbarment for Conduct Unbecoming of an Attorney Affirmed by Fifth Circuit

A Texas federal district court properly disbarred a lawyer who “engaged in fraudulent and other misconduct” during his client’s wrongful termination suit, the Fifth Circuit said Tuesday.

Ryan Eugene Ray failed to hand over emergency room records that contradicted his client’s explanation for missing the shift that led to his firing, the U.S. Court of Appeals for the Fifth Circuit said and more egregiously had previously duped the appellate court on appeal,  reversing the lower courts’ decision with his devious and calculated untruths.

In re Ray, No. 19-10875 (5th Cir. Mar. 3, 2020)

WIENER, JACQUES L. (JR.)

WILLETT, DON R.

STEWART, CARL E.

No. 19-10875

03-03-2020

In re: RYAN EUGENE RAY, Appellant


Appeal from the United States District Court for the Northern District of Texas Before WIENER, STEWART, and WILLETT, Circuit Judges. CARL E. STEWART, Circuit Judge:

Attorney Ryan Eugene Ray appeals his permanent disbarment from the U.S. District Court for the Northern District of Texas. The district court imposed this sanction after determining that Ray engaged in fraudulent and other misconduct in a wrongful termination case involving one of his clients. We AFFIRM.

I. Facts & Procedural Background

On July 15, 2013, Jose Hernandez, a United States Army reservist who worked for Results Staffing, Inc. (“RSI”), failed to report to work and instead went to the emergency room (“ER”) complaining of a headache and back pain. Hernandez vResults StaffingInc., 907 F.3d 354, 357 (5th Cir. 2018). RSI fired Hernandez for violating its “no call/no show” policy, which required employees to report to their employer four hours prior to their scheduled shift if they were unable to come to work. Id. Hernandez hired Ray to represent him and, in 2014, filed suit against RSI alleging violation of his rights under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) of 1994. Id Hernandez claimed that his ER visit was for treatment of an aggravation of a back condition that he suffered while on military duty the preceding weekend. Id. at 359. Thus, under USERRA’s convalescence provision, his reporting period was extended to July 16, on grounds that he sustained an injury during his military service on July 15. See 38 U.S.C. § 4312(e)(2)(A) (“A person who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed services shall, at the end of the period that is necessary for the person to recover from such illness or injury, report to the person’s employer[.]”).

During the discovery period, RSI served Hernandez with requests for production of all medical records from July 2013, including those from the July 15 ER trip, as well as any records relating to treatment for his injuries alleged in his suit against RSI. Id. at 357-58. In response, Hernandez turned over a doctor’s note from his attending physician stating that Hernandez was under his care on July 15 and could return to work the following day. Id. at 358. On March 12, 2015, RSI obtained Hernandez’s signature on an authorization to obtain relevant medical records but did nothing with the signed document thereafter. Id. Then, at some point between May 15 and May 18, 2015, Ray received copies of Hernandez’s medical records from the July 15 ER trip and claimed to have faxed the records to opposing counsel but later discovered that the fax failed to transmit. Id.

A bench trial was held and the district court denied Hernandez’s claims and rendered judgment in favor of RSI. Id. Hernandez appealed and this court reversed and rendered judgment in his favor, remanding for the district court’s calculation of damages. See Hernandez vResults StaffingInc., 677 F. App’x 902, 908 (5th Cir. 2017) (per curiam) (unpublished). While the case was pending on remand, RSI learned that Ray had Hernandez’s July 15 ER records in his possession prior to trial but failed to disclose them. Hernandez907 F.3d  at 358. RSI also contended that Hernandez and his wife gave false testimony at trial as to the true reason for Hernandez’s ER trip. Id. RSI filed a Rule 60(b) motion for relief from judgment, attaching the July 15 records revealing that Hernandez visited the ER with the primary complaint of a migraine-type headache, with back pain as only an associated symptom resulting from a chronic non-disabling condition that he had for many years. Id. at 358-59. RSI complained that these records proved that Hernandez’s ER trip was not for treatment of an aggravation of a back condition that he suffered while on military duty the previous weekend as he had testified at trial and argued on appeal. Id. at 359.

See FED. R. CIV. P. 60(b) (“[T]he court may relieve a party or its legal representative from a final judgment, order, or proceeding [due to] fraud[,] . . . misrepresentation, or misconduct by an opposing party[.]”).

Agreeing with RSI, the district court granted the Rule 60(b) motion. Id. at 358-59. The district court determined that Hernandez and his wife intentionally gave false testimony to mislead RSI in its trial preparation and that this testimony ultimately misled the Fifth Circuit on appeal. Id. at 359. The district court also concluded that Ray failed to take the appropriate steps to supplement an incomplete discovery response by providing the July 15 ER records to opposing counsel once they came into his possession. Id.

On interlocutory appeal, this court affirmed the district court’s judgment granting RSI’s Rule 60(b) motion. Id. at 366. We explained that:

We do not need to reach the more difficult question whether the signing of an authorization for release of protected health information is sufficiently responsive to a Rule 34 request for production, because once Hernandez’s counsel obtained physical possession of the records, he had a continuing obligation under Rule 26(e) to disclose them to RSI. By declining to do that, Hernandez failed to meet his obligations under the federal rules, which include a duty to supplement prior disclosures “in a timely manner” if they are incomplete and “if the additional . . . information has not otherwise been made known to the other parties during the discovery process or in writing.” FED. R. CIV. P. 26(e).

Id. at 362. We held that “[t]he district court correctly applied our two-pronged test for Rule 60(b)(3) motions, finding, by clear and convincing evidence, that Hernandez engaged in fraud or other misconduct that prevented RSI from fully and fairly litigating its case.” Id. at 365.

See Hesling vCSX Transp., Inc., 396 F.3d 632, 641 (5th Cir. 2005) (establishing that to prevail on a Rule 60(b)(3) motion, the movant must show “(1) that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully and fairly presenting his case”).

Hernandez filed a motion for reconsideration of the district court’s final order granting RSI’s Rule 60(b) motion. RSI filed a response brief in support of its motion for sanctions requesting that the district court sanction both Ray and Hernandez by awarding RSI attorney’s fees and litigation expenses incurred since May 2015 and dismissing all pending litigation with prejudice. The district court denied Hernandez’s motion for reconsideration. In April 2019, Hernandez and RSI settled and filed a joint stipulation for dismissal with prejudice of all pending claims pursuant to Rule 41. See FED. R. CIV. P. 41(a)(1)(A)(ii). The district court entered final judgment accordingly, but the proceedings did not end there. Less than a month later, the district court ordered Ray to file a response “relative to his conduct [in the Hernandez case] and the possibility that the court might issue an order imposing discipline on him for his inappropriate conduct, including the possibility of an order directing the court clerk to remove Ray’s name from the role of attorneys authorized to practice law before this court.” Ray filed a response arguing against the district court’s imposition of sanctions. Ray also declined the  district court’s offer of a hearing as well as its solicitation of the details of any financial burden Ray had incurred as a result of the settlement entered into with RSI.

The district court severed Ray’s disciplinary proceedings from the Hernandez case and filed a memorandum opinion and order directing the clerk to remove Ray’s name from the list of attorneys authorized to practice law in the U.S. District Court for the Northern District of Texas. See In re Discipline of Ray, No. 4:19-MC-015-A, 2019 WL 3082523, at *1 (N.D. Tex. July 15, 2019). In its 26-page order, the district court explained that it imposed this sanction under Local Civil Rule 83.8(b)(1),(3), and (4), which provides that a presiding judge may impose appropriate discipline against a member of the bar for “conduct unbecoming a member of the bar[,]” “unethical behavior[,]” and the “inability to conduct litigation properly[.]” Id. The district court stated:

Contrary to the expectations of Dondi, Ray’s conduct on behalf of Hernandez fueled unnecessarily the costs to [RSI] of this litigation to the point of causing it to expend something in excess of $340,000 before it was all over with. Ray’s behavior as attorney for Hernandez was of a pattern that tended to be destructive of the administration of justice in this action. He engaged in fraud, misrepresentation, and misconduct that created a false record and provided fodder for false arguments by Hernandez and his counsel to this court and to the Fifth Circuit in the initial appeal. Ray sat silently by when, at oral argument in the Fifth Circuit during the initial appeal, one of the panel members asked the attorney for [RSI] if there was any evidence in rebuttal to [Hernandez’s] claim that his trip to the emergency room the morning of July 15, 2013, was to receive medical attention for a back injury he sustained over the weekend, to which the attorney for [RSI] was forced to respond “there is no other real evidence one way or the other[]” . . . Only an attorney completely devoid of an ethical or moral sense of right and wrong would have sat quietly by as [RSI]’s attorney was required to make that sort of answer, bearing in mind that Ray had in his possession documents, which he had withheld from [RSI], showing that the real reason Hernandez went to the hospital that morning was for a condition that was unrelated to his military service the preceding weekend. Id. at *7.

The district court continued that if it “were to order less than removal of Ray’s right to practice law before this court as discipline on Ray, the expectations of Dondi would be sorely disappointed.” Id. at *9. The district court determined that Ray’s conduct squarely qualified under the factors this court considers in evaluating whether an attorney’s disbarment is warranted. See In re Sealed Appellant194 F.3d 666, 674 (5th Cir. 1999). The district court ordered Ray’s removal from the list of attorneys authorized to practice in the Northern District determining that Ray was “unfit to practice in this court, and that his disbarment from such practice [would] protect the court and the public from his ministrations as such an unfit person.” In re Discipline of Ray, 2019 WL 3082523, at *10. Ray filed this appeal.

Dondi PropsCorpvCommerce Sav& Loan Ass’n121 F.R.D. 284, 287-88, 291 (N.D. Tex. 1988) (en banc) (establishing and adopting standards of litigation conduct to be observed in civil actions in the U.S. District Court for the Northern District of Texas, including candor, diligence, respect, personal dignity, and professional integrity).

II. Standard of Review

“Sanctions imposed against an attorney by a district court are reviewed for abuse of discretion.” In re Mole822 F.3d 798, 801 (5th Cir. 2016). We will determine that the district court has abused its discretion if “its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. Disbarment of an attorney by a federal court is proper “only upon presentation of clear and convincing evidence sufficient to support the finding  of one or more violations warranting this sanction.” Sealed Appellant194 F.3d at 670.

III. Discussion

On appeal, Ray argues that the district court abused its discretion in imposing disbarment because its findings were not supported by clear and convincing evidence. Specifically, Ray challenges the district court’s findings that Hernandez and his wife committed perjury and that Ray intentionally withheld evidence. Ray also argues that the district court erred in failing to consider a lesser sanction than disbarment. Ray posits, however, that even a lesser sanction would be inappropriate since he should not be sanctioned at all. According to Ray, he only withheld “significant evidence” from opposing counsel prior to trial because he was “an inexperienced attorney, and not due to fraud[.]” We disagree.

This court has already upheld the district court’s judgment granting RSI’s Rule 60(b) motion on grounds that RSI established “by clear and convincing evidence, that Hernandez engaged in fraud or other misconduct that prevented RSI from fully and fairly litigating its case.” See Hernandez907 F.3d at 365. There, we observed that “once [Ray] obtained physical possession of the records, he had a continuing obligation under Rule 26(e) to disclose them to RSI” and in not doing so “failed to meet his obligations under the federal rules.” Id. at 362. We further underscored the district court’s extensive findings that “[Hernandez], often through his attorney [Ray], engaged in fraud, misrepresentation, and misconduct in [his] presentations, verbally and in writing, to the court in pretrial matters, during the trial, and in his presentations to the Fifth Circuit in support of his appeal from [the district] court’s dismissal of his claims[.]” Id. at 364.

Thus, the only question before us now is whether the district court’s imposition of disbarment as a sanction for Ray’s adequately documented  misconduct was an abuse of discretion. The answer is no. As we observed in Sealed Appellant, “[d]isbarment is generally appropriate when a lawyer engages in intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously, adversely reflects on the attorney’s fitness to practice.” 194 F.3d at 674. We explained in that case that

[w]hen acting under an inherent power to disbar an attorney, a district court must make a specific finding that an attorney’s conduct “constituted or was tantamount to bad faith.” When bad faith is patent from the record and specific findings are unnecessary to understand the misconduct giving rise to the sanction, the necessary finding of “bad faith” may be inferred.

Id. at 671. Here, the district court’s thorough and lengthy opinion reveals that it closely followed Sealed Appellant‘s parameters when it concluded that Ray’s disbarment was the proper sanction. As the district court stated:

The court can infer Ray’s mental state when he repeatedly engaged in his inappropriate conduct. A fair inference from his repeated violations of his ethical and moral obligations over a period of years is that he intentionally did what he did, knowing that it was wrong. The actual and potential injury of his misconduct included hundreds of thousands of dollars of financial loss to the opponent in his litigation and untold hours of time devoted by this court and the Fifth Circuit to evaluation of the records of the underlying action, ruling on motions, and otherwise resolving issues that were presented by reason of Ray’s misconduct. Aggravating factors include those mentioned above, and the obvious stress that the owners and managers of [RSI] have undoubtedly suffered by reason of the developments in the underlying litigation.

. . .

The court finds that Ray engaged in intentional conduct, involving dishonesty, fraud, deceit, and misrepresentation.

In re Discipline of Ray, 2019 WL 3082523, at *9. Given the district court’s detailed analysis that is supported by the record and this court’s holding in Hernandez, 907 F.3d 365-66, we conclude that the district court did not abuse its discretion in ordering Ray’s disbarment. See Mole822 F.3d at 801. Ray’s secondary argument that the district court erred in failing to consider a lesser sanction is also meritless. As the district court explained:

The court has considered, but has decided against, imposition of lesser sanctions, having concluded that no lesser sanction will adequately and appropriately address the seriousness of Ray’s misconduct. The court considered financial sanctions, but was frustrated in the court’s attempt . . . to obtain information [from Ray] that would enable the court to make an informed decision as to an appropriate financial sanction to be imposed.

In re Discipline of Ray, 2019 WL 3082523, at *5. The district court’s language above derives from its attempted solicitation of any financial payment Ray made in settling with RSI. The district court stated that it would take into account that information in deciding whether further sanctions should be imposed. As noted, however, Ray declined to reveal the details of the settlement, so the district court determined that attempting to craft an alternative lesser, i.e., a financial, sanction without this information would be a fruitless endeavor. Id. It is clear from this part of the record that the district  court did consider a lesser sanction and simply decided against it. Thus, Ray’s assertion that the district court “failed to consider a lesser sanction” and instead “jumped directly to the most severe sanctions available” is, once again, an inaccurate portrayal of the facts.

Ray’s suggestion that his withholding of “significant evidence” from opposing counsel was due to his inexperience is belied by the record. As the district court observed in its judgment imposing disbarment, Ray has been in practice since 2009 and was in his fifth year of practice when Hernandez’s original suit was filed against RSI. ——–

IV. Conclusion

For the foregoing reasons, the district court’s order imposing against Attorney Ryan Eugene Ray the sanction of disbarment from the U.S. District Court for the Northern District of Texas is affirmed.

In re Ray, No. 4:19-MC-015-A (N.D. Tex. July 15, 2019)

mcbrydej-bw.fw

NO. 4:19-MC-015-A

07-15-2019

In re Possible Discipline of Ryan Eugene Ray


MEMORANDUM OPINION and ORDER

This miscellaneous action was created by a severance from Case No. 4:14-CV-182-A of disciplinary proceedings against Ryan Eugene Ray (“Ray”), a member of the Bar of this court, who has been the attorney for the plaintiff, Jose Luis Hernandez (“Hernandez”), in such case.

So far as the court can determine, Ray’s participation for years as the attorney for Hernandez in Case No. 4:14-CV-182-A are his only appearances before the undersigned in any action on the undersigned’s docket. The court has concluded that Ray’s conduct over the years in that one case has demonstrated that Ray is subject” to significant discipline under the authority of Local Civil Rule LR 83.8(b)(1), (3), and (4), which provide as follows:

(b) Grounds for Disciplinary Action. A presiding judge, after giving opportunity to show cause to the contrary, may take any appropriate disciplinary action against a member of the bar for:

(1) conduct unbecoming a member of the bar;

. . . .

(3) unethical behavior;

(4) inability to conduct litigation properly[.]

By an order issued in Case No. 4:14-CV-182-A on May 20, 2019, the court provided a summary of the facts that have caused the court to conclude that Ray is subject to discipline pursuant to the above-quoted three sections of Rule LR 83.8(b). Doc. 50. A rather-detailed description of Ray’s misconduct in Case No. 4:14-CV-182-A prior to September 1, 2017, was provided in the memorandum opinion and order the court issued in that case on that date. Doc. 19. The order part of that document, id. at 51, granted the Rule 60(b)(3) motion of defendant, Results Staffing, Inc. (“Results”), asking that the court grant Results relief from the ruling of the United States Court of Appeals for the Fifth Circuit, reported as Hernandez v. Results Staffing, Incorporated, 677 F. App’x 902 (5th Cir. 2017)(“Hernandez I”), reversing and rendering in favor of Hernandez the judgment this court had rendered, after trial, in favor of Results against Hernandez. Id. The Fifth Circuit’s Hernandez I reversal and rendition was predicated in its entirety on the Fifth Circuit’s conclusion that the trial record established without dispute that a trip Hernandez made to the hospital emergency room the morning of July 15, 2013, was for treatment of an injury he suffered over the  preceding weekend while on duty for the United States military. Doc. 19 at 3-6. Had the trial record not been false by reason of the misconduct and fraud of Ray and his client, it would have disclosed that Hernandez’s trip to the emergency room was for an entirely different reason.

The “Doc. ___” references are to the numbers assigned to the referenced items on the docket in this Miscellaneous Case No. 4:19-MC-015-A.

The impropriety of Ray’s conduct through the date of this court’s September 1, 2017 memorandum opinion and order was the subject of a second appeal by Hernandez to the Fifth Circuit. That appeal resulted in an opinion and judgment of the Fifth Circuit affirming each of the rulings made by this court on September 1, 2017. Id. See Hernandez v. Results Staffing, Inc.907 F.3d 354 (5th Cir. 2018) (“Hernandez II”).

The court has concluded that the appropriate discipline to be imposed on Ray for the court to properly address his conduct unbecoming a member of the Bar, his unethical behavior, and his inability to conduct litigation properly, would be to remove his name from the role of attorneys authorized to practice law before this court. The imposition of such a sanction will not come as a surprise to Ray. He anticipated it in a motion he filed with the Fifth Circuit in its Case No. 17-11201, seeking a stay of the Fifth Circuit’s mandate in its decision affirming the rulings made by this court on September 1, 2017. Ray predicted in that motion that he “could face significant repercussions from  sanctions proceedings, including threats to his law license and the ability to practice law before the Northern District of Texas.” Appellant’s Mot. for Stay of Mandate, 11/14/2018 Dkt. Entry on Docket of the 5th Cir. in its Case No. 17-11201, at 10. His prediction of loss of the ability to practice before this court was an accurate assessment of the discipline that this court could and should impose on him for his repeated unethical and fraudulent conduct, which this court described in the September 1, 2017 order and that the Fifth Circuit concluded was serious enough to justify this court’s decision to grant the relief Results sought by its Rule 60 motion, ordering that Results was relieved of the Fifth Circuit’s Hernandez I judgment of reversal and remand of this court’s judgment in favor of Results. Hernandez II907 F.3d at 365-66.

The specifics of Ray’s conduct in violation of the Texas rules governing the conduct of attorneys are provided at pages 5-14 of the May 20, 2019 order. Doc. 50 at 5-14. Recent questionable conduct of Ray is described in this court’s March 20, 2019 memorandum opinion and order, doc. 47, which discusses and rules on a motion Ray filed for Hernandez post-Fifth Circuit affirmance of the September 1, 2017 rulings, in the form of a motion for reconsideration of such rulings pursuant to the authority of Rule 54(b), doc. 25. The court noted in that  memorandum opinion and order that the court questioned the good faith and honesty of Hernandez and Ray in requiring counsel for Results and the court to devote their time and attention to such a motion. Doc. 47 at 3-4, 14-15.

Returning to Ray’s pre-September 1, 2017 conduct, the court reiterates findings and conclusions the court expressed in the September 1, 2017 memorandum opinion:

1. In discussing the grounds of Results’s Rule 60 motion, this court explained:

As grounds for the motion, defendant alleged that after the Fifth Circuit issued its January 30, 2017 opinion rendering judgment for plaintiff against defendant on plaintiff’s reemployment claim, and during the course of discovery related to the issues remanded to this court for resolution, defendant discovered evidence that established that one or more of the factual bases of the Fifth Circuit’s opinion were incorrect and that the trial evidence upon which the Fifth Circuit relied in concluding that those facts were undisputed was the product of misrepresentation, fraud, and misconduct by plaintiff and his counsel.

Defendant learned that plaintiff and his wife had given false testimony at trial concerning plaintiff’s service-related back condition and his reason for going to the emergency room for medical assistance the morning of July 15, 2013, and that plaintiff and his counsel had in their possession in advance of the trial hospital records, which should have been, but were not, disclosed to defendant before the trial, that showed the true reason for his trip to the emergency room the morning of July 15, 2013. Doc. 19 at 7-8.

2. Based on the evidence the court received in support of Results’s Rule 60 motion, the court made the following findings:

The court is satisfied, and finds, that plaintiff’s visit to the emergency room the morning of July 15, 2013, was not for care or treatment of an aggravation of a back condition he suffered while on military duty over the preceding weekend but, instead, was for treatment of a severe headache, probably a migraine in character, that had its onset after he arrived home the morning of July 15, 2013, and that the low back pain he mentioned upon his hospital admission as an associated symptom was not the cause of his visit to the hospital but was a non-disabling chronic back pain that he had been suffering for years. The court further finds that to whatever extent plaintiff and his wife gave testimony inconsistent with the findings expressed in the preceding sentence, their testimony was intentionally false, and was given by them in order to disadvantage and mislead the defendant in its trial preparation and presentation, and that it ultimately misled the Fifth Circuit in plaintiff’s appeal from this court’s judgment of dismissal.

The court is further satisfied, and finds, that plaintiff’s counsel had, and knew the contents of, the records of plaintiff’s visit to the emergency room the morning of July 15, 2013, many days before the trial commenced on May 26, 2015, and that he did not take appropriate steps to supplement an incomplete and misleading response plaintiff had made to defendant’s previously served discovery request on plaintiff seeking production of all documents related to plaintiff’s visit to the emergency room; and, the court is satisfied, and finds, that counsel for plaintiff did not disclose those records to counsel for defendant in advance of the trial for the purpose of misleading defendant and its counsel into believing that plaintiff’s July 15, 2013 visit to the emergency room was for care and treatment of an aggravation of a back condition that he suffered over the weekend while performing military duties.

The court further finds that the misrepresentations made by plaintiff and his wife at the trial concerning plaintiff’s reason for seeking emergency room care the morning of July 15, 2013, and the withholding of the emergency room records by plaintiff’s counsel from defendant’s trial counsel before and during that trial, put defendant at an unfair disadvantage in defending itself at the trial, put defendant’s appeal counsel at an unfair disadvantage in his presentations to the Fifth Circuit and in answering questions the members of the Fifth Circuit posed to him during oral argument, and put the Fifth Circuit at an unfair disadvantage in evaluating what the true facts were concerning the July 15, 2013 visit to the emergency room. Id. at 13-15.

3. The court made the following additional findings in the September 1, 2017 order:

[T]he court finds by clear and convincing evidence that plaintiff, often through his attorney, engaged in fraud, misrepresentation, and misconduct in plaintiff’s presentations, verbally and in writing, to the court in pretrial matters, during the trial, and in his presentations to the Fifth Circuit in support of his appeal from this court’s dismissal of his claims. As a consequence, the trial court record was false in that it failed to disclose plaintiff’s true reasons for his visit to the hospital emergency room the morning of July 15, 2013, and the Fifth Circuit was presented with a false record and false arguments by plaintiff, through his counsel, on that subject. Id. at 35; and:

The court finds by clear and convincing evidence that if defendant had been provided the emergency room records plaintiff, through his counsel, had in his possession before the trial commenced, and if plaintiff and his wife had testified truthfully at trial, defendant would have been able to more fully and fairly present its defense to plaintiff’s claim that during the day of July 15, 2013, he was convalescing from an aggravation he suffered over the preceding weekend of a preexisting back condition. If the truth concerning plaintiff’s reason for admission to the hospital had been disclosed during or before the trial, defendant would have been in a position to effectively argue that plaintiff’s failure to be at work the morning of July 15, 2013, was not the result of any military-related injury, or aggravation of an injury, and that during the day of July 15, 2013, plaintiff was not convalescing from such an injury or aggravation.As it was, defendant was in a position that its counsel had no choice but to assume the correctness of the false presentations of plaintiff that his emergency room visit, and his absence from work on July 15, 2013, were caused by such an injury or aggravation. Had the truth been disclosed at trial, defendant’s appellate counsel would have been in a position to respond to Circuit Judge Elrod’s question, supra at 5 n.2, that there was evidence that directly rebutted plaintiff’s claim that he went to the hospital the morning of July 15, 2013, for treatment for an aggravated injury to his back; and, if the truth had been disclosed at the trial, the Fifth Circuit would not have issued an opinion indicating that it was undisputed that the convalescence plaintiff was experiencing during the day on July 15, 2013, was related to an aggravation he suffered over the weekend of a chronic back problem.
Id. at 35-37; and:

4. Other pertinent findings of the court expressed in the September 1, 2017 order were the following:

[P]laintiff and his counsel engaged in misconduct in this case that “completely sabotaged the federal trial machinery, precluding the ‘fair contest’ which the Federal Rules of Civil Procedure are intended to assure.” [Rozier v. Ford Motor Co.573 F.2d 1332, 1346 (5th Cir. 1978).] And, as in Rozier, “[i]nstead of serving as a vehicle for ascertainment of the truth, the trial in this case accomplished little more than the adjudication of a hypothetical fact situation imposed by [plaintiff’s] selective disclosure of information,” id. Id. at 46; and:

The court finds by clear and convincing evidence that plaintiff and his counsel pursued an unconscionable plan or scheme which was designed to improperly influence this court in its decision, and then the Fifth Circuit in its decision. Seeid., at 1338.The court has found from clear and convincing evidence that the judgment of the Fifth Circuit was obtained through fraud, misrepresentation, or other misconduct on the part of plaintiff and his counsel. Their inappropriate conduct led to the trial record that caused the Fifth Circuit to make the ruling it did in favor of plaintiff. The court finds from clear and convincing evidence that the conduct of plaintiff and his counsel prevented defendant from fully and fairly presenting its defense at trial, which, in turn, prevented the Fifth Circuit from having a full, complete, and honest record upon which to base its decision. Id. at 47.

All of the findings expressed in the September 1, 2017 memorandum opinion and order, the March 20, 2019 order, and the May 20, 2019 memorandum opinion and order were based on clear and convincing evidence. Those clear and convincing evidence findings are adopted here, and they provide clear-cut evidence that Ray repeatedly engaged in conduct unbecoming a member of the Bar and unethical behavior, and is unable to conduct litigation properly. All findings made in this order are based on clear and convincing evidence. 

Ray Has Had Ample Opportunity to Respond, and the Response He Made Confirms That He Should Not Be a Member of the Bar of this Court

By the order the court issued May 20, 2019, Ray was informed of the bases of the court’s concerns relative to his violations of Local Rules LR 83.8(b)(1), (3), and (4), and he was invited to make whatever response he wished to make to the court’s concerns and the possibility that the court might issue an order imposing discipline, including the possibility of an order directing the court clerk to remove his name from the role of attorneys authorized to practice law before this court, for his inappropriate conduct. Doc. 50 at 15-16.

On June 4, 2019, Ray filed a response to the court’s concerns, which was supported by his declaration. Docs 51 & 52. By order issued June 5, 2019, the court afforded Ray an opportunity to have a hearing on the subject of possible discipline against him, and gave him a deadline for informing the court as to whether he wished to have such a hearing. Doc. 53. By a response Ray filed on June 7, 2019, he declined the court’s invitation to have a hearing. Doc. 54.

Neither the response Ray filed June 4, 2019, nor its accompanying declaration provides any persuasive explanation for Ray’s inappropriate conduct in his representation of Hernandez.  Rather, while disclosing a flair for autobiographical writing, the explanations Ray gave tend to emphasize his lack of candor, his lack of remorse for his inappropriate conduct, his unwillingness to recognize the impropriety of his conduct, and his inability to conduct litigation properly and ethically or to have an understanding of how it should be conducted.

While Ray mentions in his declaration his business of representing property owners in contesting ad valorem taxes, doc. 52 at ECF 2, he fails to describe the extent of adversary proceedings in which that business has caused him to participate. Each of the hearings is adversarial in nature, with a three-member panel making a decision after hearing the evidence and argument of the attorney for the contestant and the evidence and argument of the appraisal district representative. In each instance, Ray has gained litigation experience. He started that business in 2009, ten years ago. Id. Over that time, he undoubtedly participated in hundreds of adversary proceedings. Thus, he hardly can honestly contend that he has not had a chance to develop litigation skills. He has provided other documentation that indicates that he has clients he continues to represent year after year. Doc. 47 at 5-6.

Reasons Why the Court Has Concluded That Ray Should Ho Longer Be Permitted to Practice Before this Court

The court finds from clear and convincing evidence that Ray repeatedly has engaged in conduct unbecoming a member of the Bar of this court for each of the reasons stated in this order and in each of the previously issued orders mentioned above; that he lacks the ability to conduct litigation properly, for each of those reasons; and, that he has engaged in unethical conduct for each of those reasons.

The court is ordering removal of Ray’s name from the list of attorneys authorized to practice law before this court. The court has considered, but has decided against, imposition of  lesser sanctions, having concluded that no lesser sanction will adequately and appropriately address the seriousness of Ray’s misconduct.

The court considered financial sanctions, but was frustrated in the court’s attempt, described below, to obtain information that would enable the court to make an informed decision as to an appropriate financial sanction to be imposed.

On April 24, 2019, the parties filed a joint stipulation of dismissal, doc. 48, which included a request for dismissal of a motion for sanctions by which counsel for Results had sought $366,686.97 as attorneys’ fees incurred by Results by reason of the inappropriate conduct of Ray in his capacity as attorney for Hernandez, doc. 50 at 14. By the time the joint stipulation of dismissal was filed, Ray’s conduct had caused the attorneys for Results to incur significantly greater attorneys’ fees. Id. at 14-15. In the May 20, 2019 order, the court made known to Ray that the court was considering financial sanctions, and suggested to Ray that if he wished the court to take into account payment Ray already had made to Results or its counsel, he could disclose the fact of such a payment, and its amount, to the court for the  court’s consideration in deciding on what sanctions to impose. The court explained:

If Ray made a payment to defendant or its counsel in response to defendant’s motion for sanctions, as supplemented, the court will take such a payment into account in deciding whether further sanctions should be imposed. If Ray made such a payment and wishes to disclose the fact of such a payment and its amount, he is to do so in the document the court by this order is inviting him to file. Doc. 50 at 15.

On June 4, 2019, Ray responded to the court’s suggestion by declining in the declaration he filed June 4, 2019, to inform the court of whatever payment he might have made in order to induce Results to dismiss its motion for sanctions. Doc. 52 at ECF 9.

The “ECF” reference is to the header number at the top of the page in the document on the docket of this Case No. 4:19-MC-015-A.

By an order issued June 5, 2019, the court again encouraged Ray to provide the court information concerning any financial detriment he experienced as part of the settlement that led to the court’s recent order of final dismissal. Doc. 53 at 2. In the June 5 order, the court suggested to Ray the steps he might take to make a disclosure appropriate. Id. at 1-2. The court included in the order the following:

Ray has declined to inform the court of any financial detriment he experienced as part of the settlement that led to the court’s recent order of final dismissal of the above-captioned action, indicting that his declination is based on the fact that the settlement has as one of its terms that it is to be confidential.
The court is satisfied that it has enough information to make a ruling on possible discipline to impose on Ray without a hearing, but is affording Ray an opportunity to make his case on the issue of possible discipline after disclosure to the court of any financial detriment he already has experienced by reason of his conduct and/or at a hearing if he wishes the court to schedule one. Therefore,

The court suggests that if Ray wishes to inform the court of any financial detriment he experienced as a result of the settlement, he obtain from the other parties to the settlement permission to make the disclosure the court has invited him to make. If he wishes to make such a disclosure, he must do so by a document filed in this case by 2:00 p.m. on June 7, 2019.
Doc. 53 at 1-2.

Ray responded to the June 5, 2019 order by again informing the court, without further explanation, that he declined “to reveal the terms of the confidential settlement agreement relating to this case.” Doc. 54 at 1. Thus, Ray has, in effect, informed the court that he is not interested in the court considering imposition of financial sanctions against him.

The court has given thought to suspension of Ray’s ability to practice before this court for a specified period of time. In doing so, the court has considered each and every excuse Ray gave for his conduct and conduct of his client in the Response to Order to Show Cause and his declaration he filed June 4, 2019,  docs. 51 & 52, but has not been persuaded that any of the factors presented by Ray can serve as adequate excuses.

The court cannot overlook the facts that are so apparent from the record of this action that Ray gave little consideration as the years passed to his ethical obligations or the obligations imposed on him by the en banc opinion of this court in Dondi Properties Corp. v. Commerce Savings & Loan Ass’n121 F.R.D. 284 (N.D. Tex. 1988)(en banc). The en banc Dondi opinion had as one of its goals informing and educating members of the Bar of this court that they should not engage in the kinds of inappropriate conduct in which Ray engaged in this case. In Dondi, this court made clear that the practices it expected from the members of the Bar of this court applied to inexperienced, as well as experienced, lawyers, saying:

Judges and magistrates of this court are required to devote substantial attention to refereeing abusive litigation tactics that range from benign incivility to outright obstruction. Our system of justice can ill-afford to devote scarce resources to supervising matters that do not advance the resolution of the merits of a case; nor can justice long remain available to deserving litigants if the costs of litigation are fueled unnecessarily to the point of being prohibitive.

As judges and former practitioners from varied backgrounds and levels of experience, we judicially know that litigation is conducted today in a manner far different from years past. Whether the increased size of the bar has decreased collegiality, or the legal profession has become only a business, or experienced lawyers have ceased to teach new lawyers the standards to be observed, or because of other factors not readily categorized, we observe patterns of behavior that forebode ill for our system of justice. We now adopt standards designed to end such conduct. Dondi121 F.R.D. at 286 (footnote omitted).

Contrary to the expectations of Dondi, Ray’s conduct on behalf of Hernandez fueled unnecessarily the costs to Results of this litigation to the point of causing it to expend something in excess of $340,000 before it was all over with. Ray’s behavior as attorney for Hernandez was of a pattern that tended to be destructive of the administration of justice in this action. He engaged in fraud, misrepresentation, and misconduct that created a false record and provided fodder for false arguments by Hernandez and his counsel to this court and to the Fifth Circuit in the initial appeal. Ray sat silently by when, at oral argument in the Fifth Circuit during the initial appeal, one of the panel members asked the attorney for Results if there was any evidence in rebuttal to plaintiff’s claim that his trip to the emergency room the morning of July 15, 2013, was to receive medical attention for a back injury he sustained over the weekend, to which the attorney for Results was forced to respond “there is no other real evidence one way or the other.” Doc. 19 at 5 n.2. Only an attorney completely devoid of an ethical or moral sense of right and wrong would have sat quietly by as  Results’s attorney was required to make that sort of answer, bearing in mind that Ray had in his possession documents, which he had withheld from Results, showing that the real reason Hernandez went to the hospital that morning was for a condition that was unrelated to his military service the preceding weekend. The emergency room records Ray possessed disclosed the following:

HPI Comments: History of Present Illness:

Historian: Patient.

Chief Complaint: Headache, frontal
Onset/Duration of symptoms: Today
Where did it Occur: Home
Severity: severe.
Time Course: Persisting.
Context of Events: Spont onset
Worsened by: nothing
Improved by: nothing
Associated Symptoms: Low back pain, sharp – similar to prev
Treatments Prior to Arrival: None
Sick Contacts: None
Recent Doctor Visits or Treatments: None
Similar Symptoms Previously: Yes, dx with migraines

Doc. 19 at 8.

The records also showed (1) under the heading “Past Medical History,” as the first diagnosis, “[m]igraine,” (2) that the “Encounter Diagnosis” was “[h]eadache (primary encounter diagnosis)” and “[l]ow back pain,” and (3) that the location of defendant’s headache was “Generalized.” Id. at 9.

Ray knew before the panel member asked that foregoing question that there was nothing in the medical records saying  that Hernandez complained that he had experienced any injury while on military service duty over the weekend, and that the only pertinent past-medical history shown in the medical records explaining why he was at the hospital were the entries showing that his past surgical history included a head injury at age 4 and a history of migraines, alongside the words “Similar Symptoms Previously.” Doc. 47 at 13.

Standards adopted by Dondi that are particularly pertinent here include the following:

From them we adopt the following as standards of practice to be observed by attorneys appearing in civil actions in this district:

(A) In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the judicial system that serves both attorney and client.

(B) A lawyer owes, to the judiciary, candor, diligence and utmost respect.

. . . .

(D) A lawyer unquestionably owes, to the administration of justice, the fundamental duties of personal dignity and professional integrity.

Dondi121 F.R.D. at 287-88 (footnote omitted). 

The en banc court added in Dondi the court’s expectations of attorneys who comply with the standards of conduct described by Dondi, saying:

Attorneys who abide faithfully by the standards we adopt should have little difficulty conducting themselves as members of a learned profession whose unswerving duty is to the public they serve and to the system of justice in which they practice. Those litigators who persist in viewing themselves solely as combatants, or who perceive that they are retained to win at all costs without regard to fundamental principles of justice, will find that their conduct does not square with the practices we expect of them. . . .

. . . .Similarly, we do not imply by prescribing these standards that counsel are excused from conducting themselves in any manner otherwise required by law or by court rule. We think the standards we now adopt are a necessary corollary to existing law, and are appropriately established to signal our strong disapproval of practices that have no place in our system of justice and to emphasize that a lawyer’s conduct, both with respect to the court and to other lawyers, should at all times’ be characterized by honesty and fair play. Id. at 288-89 (footnote omitted).

The goal of the Dondi standards was to promote “the efficient administration of our system of justice” and “to satisfy the goals of reducing litigation costs and expediting the resolution of civil actions.” Id. at 291.

Ray’s conduct on behalf of Hernandez violated virtually every one of the expectations expressed by this court in Dondi He put this court and the Fifth Circuit at an unfair disadvantage in evaluating what the true facts were concerning Hernandez’s July 15, 2013 visit to the emergency room by sponsoring and providing false information on that subject to this court and the Fifth Circuit and by standing silently by when the attorney for Results was forced to give an uninformed answer to the critical question directed to the attorney by a panel member.

Ray participated knowingly and intentionally in presenting to this court and to the Fifth Circuit a false testimony and false arguments concerning the reason for the July 15, 2013 emergency room visit.

Supra at 5-8.

The conduct of Ray and his client “completely sabotaged the federal trial machinery, precluding the ‘fair contest’ which the Federal Rules of Civil Procedure are intended to assure.”

Supra at 8.

Ray and his client “pursued an unconscionable plan or scheme which was designed to improperly influence this court in its decision, and then the Fifth Circuit in its decision.”

Supra at 9.

Their conduct prevented Results “from fully and fairly presenting its defense at trial, which, in turn, prevented the Fifth Circuit from having a full, complete, and honest record upon which to base its decision.” Id.

Because of the dishonest conduct of Ray and his client, “[i]nstead of serving as a vehicle for ascertainment of the truth, the trial in this case accomplished little more than the adjudication of a  hypothetical fact situation imposed by [Hernandez’s and Ray’s] selective disclosure of information.”

Supra at 8-9.

If this court were to order less than removal of Ray’s right to practice law before this court as discipline on Ray, the expectations of Dondi would be sorely disappointed. When everything presented to the court in the handling of the underlying litigation was taken into account, the court concluded that disbarment to practice before this court would be the only discipline that would adequately address Ray’s inappropriate conduct in the underlying action. Ray has recognized for some period of time that his conduct in representing Hernandez caused him to be faced with a threat to his ability to practice law before this court. Supra at 3-4.

This court is not in a position to remove from Ray his law license, but is firmly convinced that Ray correctly predicted that he put his ability to practice law before this court at risk by his conduct while representing Hernandez. In the order the court issued May 20, 2019, the court informed Ray that the court agreed with Ray’s prediction that his fraudulent and unethical conduct was egregious enough to cause him to lose his law license and the  ability to practice in the Northern District of Texas.

Doc. 50 at 2.

The court further explained that this court has no authority to deprive Ray of his law license, but does have the authority under the Local Rules of this court to cause him to lose his right to practice before this court. Id.

Upon further study of the record of the underlying Hernandez action, the court is perfectly satisfied that Ray’s misbehavior that was repeated time and time again over a period of years was so egregious that any discipline short of loss of his ability to practice before this court would not be adequate.

In imposing that discipline on Ray, the court has fully considered the factors the Fifth Circuit said that a court should consider when imposing a sanction after finding misconduct. See In re Sealed Appellant194 F.3d 666, 673 (5th Cir. 1999).

The court can infer Ray’s mental state when he repeatedly engaged in his inappropriate conduct. A fair inference from his repeated violations of his ethical and moral obligations over a period of years is that he intentionally did what he did, knowing that it was wrong.

The actual and potential injury of his misconduct included hundreds of thousands of dollars of financial loss to the opponent in his litigation and untold hours of time devoted by this court and the Fifth Circuit to evaluation of the records of the underlying action, ruling on motions, and otherwise resolving issues that were presented by  reason of Ray’s misconduct.

Aggravating factors include those mentioned above, and the obvious stress that the owners and managers of Results have undoubtedly suffered by reason of the developments in the underlying litigation. In addition to considering the factors mentioned by the Fifth Circuit in the In re Sealed Appellant opinion, the court, in deciding that disbarment from practice before this court is an appropriate sanction to impose on Ray, took into account other factors the Fifth Circuit has considered appropriate when affirming a district judge’s disbarment ruling.

The In re Sealed Appellant court summed up its reasons for affirmance of the disbarment ruling as follows:

As contemplated by Texas Disciplinary Rules, the court is ordering the clerk of court to provide copies of this order and the September 1, 2017 memorandum opinion and order in Case No. 4:14-CV-182-A to the appropriate disciplinary authorities of the State Bar of Texas. Tex. Disciplinary R. Prof’l Conduct 8.03(a)reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2019)(Tex. State Bar R. art. X, § 9). ——–

The power of disbarment is necessary to protect the public’s confidence in the profession and the judicial system because a court implicitly represents that an attorney permitted to practice before it is in good standing to do so. Disbarment is generally appropriate when a lawyer engages in intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously, adversely reflects on the attorney’s fitness to practice. [Appellant] violated ethical duties owed to the public, the profession, and the judicial system.

By backdating the endorsement of the stock certificate and lying or being deliberately misleading under oath, [Appellant] engaged in intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on his fitness to practice. It follows that disbarment is the appropriate baseline disciplinary action.

194 F.3d at 674 (footnotes omitted).

The court finds that Ray engaged in intentional conduct, involving dishonesty, fraud, deceit, and misrepresentation.

Apropos to the court’s decision is the language used by the Fifth Circuit in Crowe v. Smith:

‘The power to disbar an attorney proceeds upon very different grounds’ from those which support a court’s power to punish for contempt. [Cammer v. United States350 U.S. 399, 408 n.7 (1956)](quoting, Ex Parte Robinson, 86 U.S. (19 Wall.) 505, 512 22 L. Ed. 205 (1873)); EX Parte Wall107 U.S. 265, 2882 S. Ct. 56927 L. Ed. 552 (1883)(stating that a disbarment proceeding requires no formal indictment, because it is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them); Cunningham v. Ayers921 F.2d 585, 586 (5th Cir. 1991)(Wisdom, J.)(Disbarment proceedings are not for the purpose of punishment, but rather seek to determine the fitness of an official of the court to continue in that capacity and to protect the courts and the public from the official ministration of persons unfit to practice.)(quoting In re Derryberry72 B.R. 874, 881 (Bankr. N.D. Ohio 1987)). . . .

It is beyond dispute that a federal court may suspend or dismiss an attorney as an exercise of the court’s inherent powers. [RTC v. Bright, 6 F.3d 336, 340 (5th Cir. 1993)]; Howell v. State Bar of Texas843 F.2d 205, 206 (5th Cir. 1988)(Since the early days of English common law, it has been widely recognized that courts possess the inherent power to regulate the conduct of attorneys who practice before them and to discipline or disbar such of those attorneys as are guilty of unprofessional conduct.); Flaksa v. Little River Marine Constr. Co.389 F.2d 885, 889 n.10 (5th Cir. 1968) (The power of a court to discipline members of its own bar can scarcely be doubted seriously. An attorney is under no obligation to seek admission to the bar of a United States district court.

He is at liberty to abstain from membership in that or any other bar. But when he does apply and is admitted he secures certain privileges and also assumes definite obligations. The power of a court to impose appropriate and reasonable sanctions upon those admitted to its bar is a familiar phenomenon and lies within the inherent power of any court of record.) 151 F.3d 217, 229-30 (5th Cir. 1998) (internal quotation marks and parentheses omitted).

The court has concluded that Ray is unfit to practice in this court, and that his disbarment from such practice will protect the court and the public from his ministrations as such an unfit person.

Order

Therefore,

The court ORDERS that the clerk of court remove Ray’s name from the list of attorneys authorized to practice before this court, and that if Ray seeks readmission, he attach to his application for readmission a copy of this memorandum opinion and order.

The court further ORDERS that the clerk of court provide copies of this order and the September 1, 2017 (doc. 19) and May 20, 2019 (doc. 50) orders in Case No. 4:14-CV-182-A to the appropriate office of the State Bar of Texas for consideration of  possible action to be taken by the disciplinary section of that organization.

SIGNED July 15, 2019.

/s/_________

JOHN McBRYDE

United States District Judge

Hernandez v. Results Staffing, Inc., 907 F.3d 354 (5th Cir. 2018)

SMITH, JERRY E.

CLEMENT, EDITH B.

COSTA, GREGG J.

No. 17-11201

10-24-2018

Jose Luis HERNANDEZ, Plaintiff–Appellant, v. RESULTS STAFFING, INCORPORATED, Defendant–Appellee.

Ryan Eugene Ray, Ray Law Group, Haltom City, TX, for Plaintiff-Appellant. Britton Dale McClung, Joel Bailey, Jacob B. Kring, Hedrick Kring, P.L.L.C., Dallas, TX, for Defendant-Appellee.


Ryan Eugene Ray, Ray Law Group, Haltom City, TX, for Plaintiff-Appellant.

Britton Dale McClung, Joel Bailey, Jacob B. Kring, Hedrick Kring, P.L.L.C., Dallas, TX, for Defendant-Appellee.

Before SMITH, CLEMENT, and COSTA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

“If this case is an example, the term ‘civil procedure’ is an oxymoron.” Green v. GTE Cal., Inc. , 29 Cal.App.4th 40734 Cal.Rptr.2d 517, 518 (1994). It comes before us for a second time, more than five years after Results Staffing, Incorporated (“RSI”), fired Jose Hernandez for failing to report to work. Hernandez appeals the interlocutory order granting RSI’s Federal Rule of Civil Procedure 60(b) motion for relief from our prior judgment. See Hernandez v. Results Staffing, Inc. , 677 F. App’x 902 (5th Cir. 2017). We affirm.

I.

RSI, which provides unskilled day laborers to third parties, employed Hernandez, an Army reservist, beginning in early 2013. After attending a weekend military training session July 12–14, 2013, Hernandez failed to appear for work on Monday, July 15, and instead visited a local emergency room complaining of a headache and lower back pain. RSI fired Hernandez for violating the company’s “no call/no show” policy, which “requires employees to call in four hours before a scheduled start time if they are unable to report to work.” Hernandez sued in 2014, alleging that RSI had violated his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).

RSI served Hernandez with two requests for production concerning medical records from his July 15 visit to the emergency room. The first request (“No. 12”) sought “[a]ll documents related to any visits [Hernandez] had with civilian medical personnel in July 2013, including all documents related to [Hernandez’s] visit to the hospital on July 15, 2013, as alleged in [his] [p]etition.” The second request (“No. 19”) sought “[a]ll documents relating to any medical treatment that [Hernandez] underwent for the injury alleged in [his] [p]etition.”

Hernandez objected to these requests but nonetheless produced a one-page doctor’s note in which the attending physician wrote that Hernandez was under his care on July 15, 2013, and would be able to work the next day. Neither Hernandez nor his counsel gave any indication that additional medical records existed. RSI later provided Hernandez with an authorization for release of protected health information, which Hernandez signed on March 12, 2015. RSI did not make use of the signed authorization to obtain the relevant medical records.

Hernandez’s counsel received copies of Hernandez’s medical records from July 15 on (in his words) “either Friday, May 15th or Monday, May 18th [2015],” shortly before trial. Hernandez’s lawyer claims that he then “attempted to fax them to [RSI’s] counsel, even though [RSI’s] counsel already had an authorization to obtain the records from the hospital.” The fax allegedly failed to transmit.

As the district court highlighted in its order granting RSI’s Rule 60(b) motion, “[Hernandez] generally represented in his response document that ‘documents responsive to this request in the possession, custody and control of the Plaintiff are attached as Exhibits in response to the Defendant’s written discovery requests ….’ “

At the hearing on the Rule 60(b) motion, the district court examined Hernandez’s attorney, Ryan Ray, concerning his claim of a failed fax transmission. The court noted that the failed fax containing the medical records was allegedly sent at 11:24 pm, well outside of normal business hours, and that Ray discovered the failed fax attempt just days before the Rule 60(b) motion hearing (in 2017).

Following a non-jury trial in May 2015, the district court denied Hernandez any relief. We reversed, rendering “judgment in favor of Hernandez” and remanding “the case to the district court to determine [his] damages.” Id . at 908.

On remand, RSI discovered that “[Hernandez] and his wife had given false testimony at trial concerning [his] service-related back condition and his reason for going to the emergency room.” Additionally, as the district court explained, RSI also found that “[Hernandez] and his counsel had in their possession in advance of the trial hospital records, which should have been, but were not, disclosed to [RSI] before the trial that showed the true reason for [Hernandez’s] trip to the emergency room [on] the morning of July 15, 2013.”

After that discovery, RSI filed a Rule 60(b) motion for relief from judgment, attaching Hernandez’s July 15 emergency room records, which demonstrated that the primary reason for Hernandez’s visit was a headache (not a back injury, aggravated by his weekend military service, as he had claimed). In opposition, Hernandez contended that, inter alia , the district court lacked jurisdiction to consider the motion for relief from judgment, the records “confirm that [Hernandez] was treated for a back injury,” RSI had failed to exercise diligence in obtaining the records, and counsel’s “failure to disclose was inadvertent.”

At trial, Hernandez had testified to the following: “I woke up, and I was in severe pain. My left leg was locked at a 90-degree angle. I had a stabbing sensation in the lower left side of my back. I was crying. I was wincing. At times, it was difficult to breathe.”

The district court granted the Rule 60(b) motion, finding that [Hernandez’s] visit to the emergency room [on] the morning of July 15, 2013, was not for care or treatment of an aggravation of a back condition he suffered while on military duty over the preceding weekend but, instead, was for treatment of a severe headache, probably a migraine in character, that had its onset after he arrived home the morning of July 15, 2013, and that the low back pain he mentioned upon his hospital admission as an associated symptom was not the cause of his visit to the hospital but was a non-disabling chronic back pain that [Hernandez] had been suffering for years.

The court also determined that Hernandez and his wife gave intentionally false testimony “in order to disadvantage and mislead [RSI] in its trial preparation and presentation, and that [this testimony] ultimately misled [the Fifth Circuit] in [Hernandez’s initial] appeal.” Furthermore, the district court found that Hernandez’s lawyer failed to “take appropriate steps to supplement an incomplete and misleading response [Hernandez] had made to [RSI’s] previously served discovery request … seeking production of all documents related to [Hernandez’s] visit to the emergency room.” The court determined that Hernandez’s purpose in doing so was to “mislead[ ] [RSI] and its counsel into believing that [Hernandez’s] July 15, 2013 visit to the emergency room was for care and treatment of an aggravation of a back condition that he suffered over the weekend [of July 12–14, 2013] while performing military duties.”

In granting the Rule 60(b) motion, the district court ultimately concluded, inter alia , that Hernandez’s actions placed “[RSI] at an unfair disadvantage in defending itself at the trial” and “put the Fifth Circuit at an unfair disadvantage in evaluating … the true facts [of this case].”

The court also determined, however, that there was “substantial ground for difference of opinion” concerning whether providing a signed authorization for release of protected health information is sufficient to satisfy the signing party’s ongoing discovery obligations under Federal Rules of Civil Procedure 34, 26(b), and 26(e). Consequently, the court certified that question for interlocutory review under 28 U.S.C. § 1292(b). We granted Hernandez’s unopposed motion for leave to appeal the interlocutory order.

II.

Hernandez contends that the district court lacked jurisdiction to grant relief per Rule 60(b)(3) because it effectively set aside the judgment of this court. Under the facts and circumstances of this case, we disagree.

This court reviews de novo an interpretation of a federal rule of civil procedure. See Lowry Dev., L.L.C. v. Groves & Assocs. Ins., Inc. , 690 F.3d 382, 385 (5th Cir. 2012). Accordingly, this jurisdictional question is reviewed de novo . See id . ; see also Frazar v. Ladd , 457 F.3d 432, 435 (5th Cir. 2006) (“We review de novo … any questions of law underlying the district court’s decision.”).

Federal Rule of Civil Procedure 60(b) provides grounds by which a “court may relieve a party or its legal representative from a final judgment, order, or proceeding,” including in cases involving fraud, misconduct, or misrepresentation by an adverse party. In Standard Oil Co. of California v. United States , 429 U.S. 17, 1797 S.Ct. 3150 L.Ed.2d 21 (1976) (per curiam), the Court held that a district court may entertain a Rule 60(b) motion without first obtaining leave of the appellate court. The Court found “the arguments in favor of requiring appellate leave … unpersuasive,” noting that such a requirement “adds to the delay and expense of litigation and … burdens the increasingly scarce time of the federal appellate courts.” Id. at 18, 97 S.Ct. 31.

Fed. R. Civ. P. 60(b)(3). The rules also contain a “catch-all” provision that allows for relief from a judgment, order, or proceeding for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).

Before Standard Oil , the Supreme Court and numerous courts of appeals had “required appellate leave before the District Court could reopen a case which had been reviewed on appeal.” Standard Oil , 429 U.S. at 1897 S.Ct. 31.

Because Standard Oil did not explicitly state whether its ruling was limited to cases in which the court of appeals affirms , Hernandez asserts that where the appellate court reverses , the district court is not permitted to entertain a Rule 60(b) motion unless “the court of appeals recalls its mandate.” Hernandez cites a previous line of precedent in which the Supreme Court appeared to require the moving party to obtain leave of the higher court before a lower court could disturb its judgment.

In Hazel-Atlas Glass Co. v. Hartford-Empire Co. , 322 U.S. 238, 24864 S.Ct. 99788 L.Ed. 1250 (1944), the Court noted that a judgment that had been reviewed on appeal “was not subject to impeachment … because a trial court lacks the power to deviate from the mandate of an appellate court.” See also In re Potts , 166 U.S. 263, 26717 S.Ct. 52041 L.Ed. 994 (1897) (contending that a once a higher court has decided a case on appeal, the lower court “has no authority, without express leave of [the higher] court, to grant a new trial, a rehearing, or a review, or to permit new defenses on the merits to be introduced by amendment of the answer”).

Hernandez’s theory fails for two reasons.

First, Standard Oil overruled Hazel-Atlas . See McClure v. F.D.I.C , No. 93-8216, 1994 WL 14096, at *2 n.5 (5th Cir. Jan. 4, 1994). Second, this court has not—at least since Standard Oil —required a party to obtain its leave before a district court may entertain a Rule 60(b) motion. In United States v. Warden , for example, we declined to hear a Rule 60(b) motion for relief, noting that “[a]pplication for relief under such rule is to be made … to the district court which rendered the judgment.”

Nos. 94-20438, 94-20641, 1995 WL 413034, at *3 (5th Cir. June 22, 1995) (per curiam); see also Lindy Invs. III v. Shakertown 1992 Inc. , 360 F. App’x 510, 512 (5th Cir. 2010) (per curiam) (remarking that “in light of changed circumstances” the lower court “did not ‘flout[ ] the mandate by acting on the motion’ ” (quoting Lindy Invs. III v. Shakertown 1992 Inc. , 631 F.Supp.2d 815, 819 n.6 (E.D. La. 2008) ) ); Logan v. Burgers Ozark Country Cured Hams Inc. , No. 02-30325, 2003 WL 1524574, at *3 (5th Cir. Mar. 12, 2003) (per curiam) (highlighting that “the appellate mandate relates [only] to the record and issues then before the court, and does not purport to deal with possible later events ” (quoting Standard Oil , 429 U.S. at 1897 S.Ct. 31 ) ); LSLJ P’ship v. Frito-Lay, Inc. , 920 F.2d 476, 478 (7th Cir. 1990) (“[A] district court may reopen a case which had been reviewed on appeal without leave from the court of appeals.”).

At least one other circuit has squarely addressed this question. In DeWeerth v. Baldinger , 38 F.3d 1266, 1270-71 (2d Cir. 1994), the court held that a district court retains jurisdiction to review a Rule 60(b) motion for relief even after a reversal. The court also found, id. , that its refusal to recall a mandate had no bearing on the district court’s jurisdiction over a Rule 60(b) motion.

DeWeerth involved a suit between two parties over a painting by French impressionist Claude Monet that was allegedly stolen from a castle in southern Germany during the waning days of the Second World War. See DeWeerth v. Baldinger , 658 F.Supp. 688, 690 (S.D.N.Y. 1987). After a bench trial, the court awarded the painting to DeWeerth based, at least in part, on a finding that the applicable New York statute of limitations had not yet run. Id. at 693–96. The Second Circuit reversed, contending that the applicable New York statute of limitations had, in fact, run. See DeWeerth v. Baldinger , 836 F.2d 103, 109–10 (2d Cir. 1987). In 1991, the New York Court of Appeals interpreted the state’s statute of limitations in a manner consistent with the district court’s original ruling. See Solomon R. Guggenheim Found. v. Lubell , 77 N.Y.2d 311567 N.Y.S.2d 623569 N.E.2d 426, 430–31 (1991). Noting that the state court’s ruling was sufficient to constitute a “material change in circumstances,” the district court granted the plaintiff’s Rule 60 motion. DeWeerth v. Baldinger , 804 F.Supp. 539, 541 (S.D.N.Y. 1992). In doing so, the district court noted that the Second Circuit had declined to alter its mandate in the wake of Guggenheim , which it suggested “may have been because the district court rather than the appellate court is the appropriate initial forum for seeking redress due to post-decisional changes in law or facts.” Id . The Second Circuit reversed the ruling on the Rule 60(b) motion but noted that the district court did have jurisdiction to review the motion for relief. See DeWeerth, 38 F.3d at 1270–71.

Accordingly, under Standard Oil the district court had jurisdiction to consider RSI’s motion for relief under Rule 60. “[T]he appellate mandate relates to the record and issues then before the court, and does not purport to deal with possible later events.” Standard Oil , 429 U.S. at 1897 S.Ct. 31. The district court determined that Hernandez and his counsel had made numerous misrepresentations to both this court and the district court that were discovered after we ruled. Those misrepresentations were “possible later events,” referenced in Standard Oil , sufficient to warrant action by the district court. Id. That the Rule 60(b) motion came on the heels of a reversal , rather than an affirmance , of the initial ruling is an insufficient basis for stripping a district court of its jurisdiction to hear Rule 60(b) motions without leave. Such a standard would be inconsistent with the rationale behind Standard Oil . See id. at 18–19, 97 S.Ct. 31.

III.

Hernandez asserts that a party who signs an authorization for release of protected health information is completely discharged from the obligation of producing records controlled by healthcare providers.

Again, we disagree.

The production of documents, including medical records, is governed by Federal Rule of Civil Procedure 34(a) : “A party may serve on any other party a request within the scope of Rule 26(b)… to produce and permit the requesting party or its representative to inspect, copy, test, or sample [any designated documents] in the responding party’s possession, custody, or control.” A request within the scope of Rule 26(b) includes “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” FED. R. CIV. P. 26(b). In addition, a party making a disclosure under, inter alia , a request for production, “must supplement or correct its disclosure or response … in a timely manner if the party learns that in some way the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” FED. R. CIV. P. 26(e).

Hernandez maintains that, once signed, the records authorization relieved him from any further discovery obligation with respect to the medical records. He cites Jackson v. United Artists Theatre Circuit, Inc. , 278 F.R.D. 586, 593 (D. Nev. 2011), holding that the plaintiff did not violate the discovery rules by voluntarily providing a signed medical authorization for a defendant to “obtain the plaintiff’s medical records … directly from the providers.” Hernandez cites additional caselaw, including Clark v. Vega Wholesale , Inc.  and Neal v. Boulder , for the proposition that a party’s medical records are not in his possession, custody, or control. Under Hernandez’s theory, he had no further obligation to produce or permit inspection of his medical records because they were in the hands of a third party.

The Jackson court further asserted that “Rule 34 does not require the responding party to provide copies of documents” but only permits “inspection and copying by the requesting party.” 278 F.R.D. at 593. 181 F.R.D. 470, 472 (D. Nev. 1998). 142 F.R.D. 325, 327 (D. Colo. 1992).

Clark and Neal were cases in which the requesting party was seeking a court order to compel a responding party to provide a signed medical release form. See 181 F.R.D. at 471 ; 142 F.R.D. at 326. Here, the requested medical authorization form was provided voluntarily. Additionally, it is undisputed that Hernandez’s counsel had Hernandez’s relevant medical records in his physical possession on or about May 15, 2015, more than a week and a half before trial began.

RSI responds that “providing a medical records authorization does not relieve Hernandez of the duty to produce documents in his actual possession, particularly where … such documents contradicted key elements of his prior testimony.”

RSI relies on Frieman v. USAir Group, Inc. , for the proposition that a defendant’s “ability to obtain the documents from alternate sources does not excuse the plaintiffs from their obligation to produce the documents.”

Civ. A. No. 93-3142, 1994 WL 675221, at *4 (E.D. Pa. Nov. 23, 1994) ; see also Doe v. District of Columbia , 231 F.R.D. 27, 35 (D.D.C. 2005) (finding that medical records are in a plaintiff’s control and requiring either an authorization for their release or production of the records “if [the plaintiff] has a copy”); Orleman v. Jumpking , Inc. , No. CIV. A. 99-2522-CM, 2000 WL 1114849, at *5 (D. Kan. July 11, 2000) (“[W]here responsive information is in [the defendant’s] possession, [the defendant] is obligated to produce the information, whether or not [the] plaintiff has obtained the information from an alternate source. The rules of discovery do not permit parties to withhold material because the opponent … could discover it on their own.”); Bowman v. Consol. Rail Corp. , 110 F.R.D. 525, 527 (N.D. Ind. 1986) (determining that a party with a legal right to obtain information related to his unemployment benefits was required to provide that information on a Rule 34(a) discovery request).

We do not need to reach the more difficult question whether the signing of an authorization for release of protected health information is sufficiently responsive to a Rule 34 request for production, because once Hernandez’s counsel obtained physical possession of the records, he had a continuing obligation under Rule 26(e) to disclose them to RSI.

By declining to do that, Hernandez failed to meet his obligations under the federal rules, which include a duty to supplement prior disclosures “in a timely manner” if they are incomplete and “if the additional … information has not otherwise been made known to the other parties during the discovery process or in writing.” FED. R. CIV. P. 26(e).

Hernandez’s disclosure of the initial one-page letter was an incomplete response to at least two of RSI’s requests for production of the July 15 records. Neither Hernandez nor his counsel gave any further indication that additional medical records from that day existed.

Additionally, Hernandez failed to provide RSI with an authorization for release of protected health information as part of his discovery response.

RSI got that authorization only when it approached Hernandez to sign a release. As the district court highlighted, Hernandez’s “discovery response, in effect, told defense counsel that the doctor’s letter constituted the only emergency record [Hernandez] had the ability to obtain from the hospital.”

“Our system of discovery was designed to increase the likelihood that justice will be served in each case, not to promote principles of gamesmanship and deception in which the person who hides the ball most effectively wins the case.”

Abrahamsen v. Trans-State Express, Inc. , 92 F.3d 425, 428-29 (6th Cir. 1996).

IV.

Hernandez posits that RSI was not prevented from fully and fairly presenting its case, as contemplated by Rule 60. Additionally, in his reply brief, he contends that “review of discretionary decisions,” such as the district court’s decision to grant RSI relief from this court’s judgment, “is unavailable on an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).”

Hernandez cites Simon v. G.D. Searle & Co. , 816 F.2d 397 (8th Cir. 1987), which addressed the appropriate standard of review for the interlocutory appeal and found that although “the questions of law certified by the district court” are reviewed de novo , the courts of appeals “remain free to consider ‘such questions as are basic to and underlie’ the questions certified by the district court.” Id . at 400 (quoting Helene Curtis Indus., Inc. v. Church & Dwight Co. , 560 F.2d 1325, 1335 (7th Cir. 1977) ).

A.

Section 1292(b) provides, in relevant part, as follows:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

Although “the Court of Appeals’ jurisdiction is not confined to the precise question certified by the lower court (because the statute brings the ‘order,’ [and] not the question, before the court),” our jurisdiction is nonetheless “confined to the particular order appealed from.” United States v. Stanley , 483 U.S. 669, 677107 S.Ct. 305497 L.Ed.2d 550 (1987). “[W]hile we may not reach beyond the [district court’s] order to address other orders in the case, we are free to address ‘questions that are material to the lower court’s certified order’ ” as part of an interlocutory appeal.

Spong v. Fid. Nat’l Prop. & Cas. Ins. Co. , 787 F.3d 296, 304 (5th Cir. 2015) (quoting Castellanos-Contreras v. Decatur Hotels, LLC , 622 F.3d 393, 398 (5th Cir. 2010) ).

Accordingly, we have discretion to reach the third issue briefed by the parties if it is material to the certified order.

We review for abuse of discretion the district court’s decision to grant Rule 60(b) relief.  The district court based its decision on a finding that RSI was prevented from fully and fairly litigating its case. That finding was material to the certified order because the order itself pertained exclusively to the motion for relief from judgment.

The district court premised its grant of the motion on a belief that Hernandez had violated the federal discovery rules by failing to turn over relevant medical records and that failure constituted misconduct as contemplated by Rule 60(b). Accordingly, we next review, for abuse of discretion, the grant of the Rule 60(b) motion.

See , e.g. , Moorman v. UnumProvident Corp. , 464 F.3d 1260, 1264 (11th Cir. 2006) (reviewing for abuse of discretion, as part of an interlocutory appeal, the denial of a discovery order). “[R]eview by appellate courts of noncertified questions is also discretionary,” so long as the noncertified question is materially related to the order. Id. at 1272.

See , e.g. , United States v. Sealed Juvenile 1 , 151 F. App’x 336, 336 (5th Cir. 2005) (per curiam) (“Before the court is an interlocutory appeal of an order … transferring appellant … for prosecution as an adult. Appellant argues that the district court abused its discretion in granting the Government’s motion to transfer proceedings … to an adult criminal prosecution. We have reviewed the record … and find no abuse of discretion.”); see also United States v. NCR Corp. , 688 F.3d 833, 837 (7th Cir. 2012) (stating that a preliminary injunction is reviewed using an abuse-of-discretion standard); Mercantile Tr. Co. Nat’l Ass’n v. Inland Marine Prods. Corp. , 542 F.2d 1010, 1012 (8th Cir. 1976) (finding, on an interlocutory appeal, that “[t]he proper test in reviewing an order denying leave to amend under [Federal Rule of Civil Procedure] 15(a) is whether the District Court has abused its discretion.”).

Judicial efficiency weighs in favor of deciding all three issues presented here as part of this interlocutory appeal instead of waiting for an appeal of the third issue after judgment. Cf. Moorman , 464 F.3d at 1272.

B.

Rule 60(b)(3) permits a court to grant relief from a final judgment or order for “fraud …, misrepresentation, or misconduct by an opposing party.” To prevail on a Rule 60(b)(3) motion, a party must establish, by clear and convincing evidence, see Rozier v. Ford Motor Co. , 573 F.2d 1332, 1339 (5th Cir. 1978), “(1) that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully and fairly presenting his case.”

Hesling v. CSX Transp., Inc. , 396 F.3d 632, 641 (5th Cir. 2005) (citing Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place , 62 F.3d 767, 772 (5th Cir. 1995) ). Ultimately, “[t]he purpose of [Rule 60(b)(3) ] is to afford parties relief from judgments which are unfairly obtained, not those which may be factually incorrect.” Diaz v. Methodist Hosp. , 46 F.3d 492, 496 (5th Cir. 1995).

1.

The district court made extensive findings that “[Hernandez], often through his attorney, engaged in fraud, misrepresentation, and misconduct in [his] presentations, verbally and in writing, to the court in pretrial matters, during the trial, and in his presentations to the Fifth Circuit in support of his appeal from [the district] court’s dismissal of his claims,” sufficient to satisfy Rozier ’s first requirement. Following an exhaustive review of the record, the district court concluded that Hernandez’s written submissions “were designed to lead the reader to think that [Hernandez’s] sole reason for going to the emergency room on the morning of July 15, 2013, was to obtain care and treatment for a back injury he aggravated while serving a military tour of duty the preceding weekend.”

The written representations were supported by Hernandez’s and his wife’s in-court testimony, and at no point did Hernandez “disclose that his reason for going to the emergency room [on] the morning of July 15, 2013, was for treatment of a headache he developed that morning while at home.”

In addition to the falsifications made to the district court, Hernandez made similar misrepresentations to this court and failed to tender, as part of RSI’s request for production, all medical records related to his visit to the emergency room.

The district court found that the “record was false in that it failed to disclose [Hernandez’s] true reasons for his visit to the hospital emergency room,” which affected both the trial and appellate proceedings.

2.

The district court also found, by clear and convincing evidence, that the  misconduct prevented RSI from having a full and fair opportunity to present its case.

The court posited that had “the truth concerning [Hernandez’s] reason for admission to the hospital … been disclosed during or before the trial, [RSI] would have been in a position to effectively argue,” inter alia , “that [Hernandez’s] failure to be at work [on] the morning of July 15, 2013, was not the result of any military-related injury, or aggravation of an injury, and that during the day of July 15, 2013, [Hernandez] was not convalescing from such an injury or aggravation.”

The court also found that the misrepresentations to it, as well as the failure to disclose Hernandez’s medical records, affected RSI’s initial appeal to this court.

Specifically, the district court highlighted an exchange at this court’s oral argument between one of the judges and counsel for RSI in which the judge asked counsel whether there was any evidence that rebutted Hernandez’s assertion that an aggravation of a preexisting back injury was the basis for his visit to the emergency room.

Ultimately, the district court’s findings in its order are sufficient to satisfy Rozier ’s second requirement that the alleged misconduct must have prevented RSI from fully and fairly litigating its case.

3.

In Anderson v. Cryovac, Inc. , 862 F.2d 910, 925 (1st Cir. 1988), the court maintained that “where discovery material is deliberately suppressed, its absence can be presumed to have inhibited the unearthing of further admissible evidence adverse to the withholder, that is, to have substantially interfered with the aggrieved party’s trial preparation.”

Although Anderson is not binding on this court, its holding is instructive. Here, the misrepresentations by Hernandez, his wife, and his counsel, as well as the failure to disclose medical records responsive to RSI’s discovery requests, presumably “inhibited the unearthing” of evidence adverse to Hernandez and “substantially interfered” with defense counsel’s preparation.

In this sense, the grant of RSI’s motion for relief from our prior judgment was not an abuse of discretion because it was not based on a “clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx , 496 U.S. 384, 405110 S.Ct. 2447110 L.Ed.2d 359 (1990). The district court correctly applied our two-pronged test for Rule 60(b)(3) motions, finding, by clear and convincing evidence, that Hernandez engaged in fraud or other misconduct that prevented RSI from fully and fairly litigating its case.

Hernandez contends that Diaz bars relief. There, we affirmed the denial of a plaintiff’s Rule 60(b)(3) motion for relief that was based on a post-trial allegation of perjury. Diaz , 46 F.3d at 496–97. Finding that the plaintiff failed to show by clear and convincing evidence that perjury had occurred and “that any perjured testimony prevented her from fully and fairly presenting her case,” we declined to reverse. Id . at 497.

Diaz is distinguishable on its facts. “If unequivocal evidence establishes that a party willfully perjured himself, and thereby prevented the opposition from fully and fairly presenting its case, use of Rule 60(b)(3) to grant the innocent party a new trial would be a proper response.” Id . (emphasis added). The Diaz plaintiff’s failure to establish by clear and convincing evidence that the defendant’s actions prevented her from fully and fairly litigating her case did not change our Rozier standard with respect to Rule 60(b)(3) motions.

In sum, the district court found that RSI established, by clear and convincing evidence, that Hernandez’s misconduct prevented it from a full and fair hearing of its case. Thus, the court did not abuse its discretion when it granted relief from judgment.

In the alternative, the district court asserted that RSI “would be entitled to the relief it seeks pursuant to the authority of Rule 60(b)(6)” if not Rule 60(b)(3). Rule 60(b)(6) permits a court to grant relief from a judgment or order for “any other reason that justifies relief.”

Because RSI was entitled to relief under Rule 60(b)(3) and because the district court did not abuse its discretion in granting such relief, we do not reach the question whether Rule 60(b)(6) provides alternative grounds.
——–

The order granting relief under Rule 60(b)(3) is AFFIRMED.

Fifth Circuit Affirm Disbarment of Texas Lawyer Ryan Ray from Local Federal Court. The Appellate Court Had Been Duped by Ray Previously.
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