NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 23-1298 ___________
FREDERICK FOSTER, Appellant
v.
JOEL H. SLOMSKY; LANDON Y. JONES; WILLIAM M. MCSWAIN; UNITED STATES ATTORNEY OFFICE FOR EASTERN DISTRICT OF PENNSYLVANIA; UNITED STATES DEPARTMENT OF JUSTICE; JANINE CASTORINA; CHRISTOPHER A. LEWIS; JONATHAN S. GOLDMAN; KATHERINE P. BARECCHIA; UNITED STATES POSTAL OFFICE; PITNEY BOWES INCORPORATED; JOHN AND JANE DOES 1 - 10; ZANE D. MEMEGER; GREGORY B. DAVID; ANNETTA FOSTER GIVHAN; MARGARET L. HUTCHINSON ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. Civ. No. 2:22-cv-03349) District Judge: Honorable Joshua D. Wolson ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) March 25, 2024
Before: KRAUSE, MATEY, and CHUNG, Circuit Judges
(Opinion filed: April 11, 2024) _________
OPINION* _________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM
Appellant Frederick Foster, proceeding pro se, appeals orders of the District Court
dismissing his complaint, denying reconsideration, and imposing a pre-filing injunction
on him. For the following reasons, we will affirm.
In November 2011, Foster sued the United States Postal Service (“USPS”), the
Pitney Bowes corporation, and others, alleging violations of the Postal Accountability
and Enhancement Act (“PAEA”), among other related claims. Foster’s claims centered
on the accusation that USPS and Pitney Bowes stole an idea for secure digital
communications that he had previously presented to them and had unsuccessfully
attempted to patent. The District Court dismissed the claims, and the Court of Appeals for
the Federal Circuit affirmed. See Foster v. Pitney Bowes Corp., 549 F. App’x 982 (Fed.
Cir. 2013) (per curiam). Foster also unsuccessfully sought to litigate his claims with the
Postal Regulatory Commission; the Court of Appeals for the D.C. Circuit denied his
petition for review of that agency’s adverse decision. See Foster v. Postal Regul.
Comm’n, 738 F. App’x 1 (D.C. Cir. 2018) (unpublished memorandum decision).
In August 2022, Foster filed a new civil action asserting that the judgments in his
prior proceedings were void because they were procured through wide-ranging “fraud on
the court.” See generally Am. Compl., ECF No. 8. He named a slew of defendants,
including the district judge who oversaw his prior case, the judge’s law clerks, various
members of the United States Attorney’s Office (“USAO”), USPS, Pitney Bowes, and
private attorneys who had participated in the prior litigation. As he had done in his prior
case, Foster moved to disqualify the USAO from representing the government
2 defendants, arguing that such representation was barred by statute. The District Court
denied the motion, citing the Federal Circuit’s rejection of the same argument in Foster’s
prior proceeding.1
The various defendants then moved to dismiss Foster’s complaint for a lack of
subject-matter jurisdiction and failure to state a claim. The District Court dismissed the
complaint, concluding that Foster’s claims were barred by sovereign immunity, judicial
privilege, and issue preclusion. When Foster moved for reconsideration of that decision,
the District Court denied his motion and ordered him to show cause why he should not be
enjoined from pursuing the same issues in future filings. Foster filed a memorandum in
opposition. The District Court rejected his arguments and imposed an injunction
requiring Foster to seek leave of Court before filing any documents related to his
underlying claims. Foster appeals.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s dismissal of Foster’s complaint and may affirm
on any basis supported by the record. See Host Int’l v. MarketPlace PHL, LLC, 32 F.4th
242, 247 n.3 (3d Cir. 2022) (citations omitted); Free Speech Coal., Inc. v. Att’y Gen., 677
F.3d 519, 529–30 (3d Cir. 2012). To survive a motion to dismiss, a complaint must allege
facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Pleadings of pro se litigants are construed liberally,
1 Foster filed and then withdrew a premature appeal from the order denying his motion for disqualification. See C.A. No. 22-3105. We then denied his petition for a writ of mandamus that sought to compel the District Court to disqualify the USAO and to void the judgment in his prior action. See C.A. No. 22-3209.
3 but “pro se litigants still must allege sufficient facts in their complaints to support a
claim.” See Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244–45 (3d Cir. 2013).
Foster’s complaint primarily seeks relief from the judgment in his prior action
based on his allegations that the judge, his staff, and the attorneys involved all committed
fraud on the court. In assessing such claims, we “employ a demanding standard . . .
requiring: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at
the court itself; and (4) that in fact deceives the court.” Herring v. United States, 424 F.3d
384, 390 (3d Cir. 2005). Moreover, “the fraud on the court must constitute egregious
misconduct such as bribery of a judge or jury or fabrication of evidence by counsel.” Id.
(cleaned up).
Foster’s complaint does not meet that demanding standard. The purportedly
fraudulent acts that he identified in his complaint amount to nothing more than legal
arguments made by his litigation opponents and rulings made by the judge that he
believes are erroneous. The mere fact that Foster disagrees with them does not render
them fraudulent or deceptive. Besides, during the prior litigation, Foster vigorously
opposed the arguments and rulings that he now asserts are fraudulent. Having had and
availed himself of that opportunity, he is not due relief from the resulting judgment on
that basis now. Cf. Mazzei v. The Money Store, 62 F.4th 88, 94 (2d Cir. 2023) (collecting
cases expressing an “unwillingness to find fraud on the court where the alleged fraud
could have been redressed in the underlying action”).
Aside from his plea to void the prior judgment, though, Foster sought other relief.
To the extent that the first eleven “counts” of the complaint sought damages from the
4 judge, the judicial clerks, the attorneys, and the parties to the litigation, we agree with the
District Court that “[t]hese counts all arise from communications that someone made in
the regular course of judicial proceedings that were pertinent and material to the relief
sought. The judicial privilege bars them.” ECF No. 56 at 6; see also Capogrosso v. N.J.
Sup. Ct., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam); Gen. Refractories Co. v.
Fireman’s Fund Ins.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 23-1298 ___________
FREDERICK FOSTER, Appellant
v.
JOEL H. SLOMSKY; LANDON Y. JONES; WILLIAM M. MCSWAIN; UNITED STATES ATTORNEY OFFICE FOR EASTERN DISTRICT OF PENNSYLVANIA; UNITED STATES DEPARTMENT OF JUSTICE; JANINE CASTORINA; CHRISTOPHER A. LEWIS; JONATHAN S. GOLDMAN; KATHERINE P. BARECCHIA; UNITED STATES POSTAL OFFICE; PITNEY BOWES INCORPORATED; JOHN AND JANE DOES 1 - 10; ZANE D. MEMEGER; GREGORY B. DAVID; ANNETTA FOSTER GIVHAN; MARGARET L. HUTCHINSON ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. Civ. No. 2:22-cv-03349) District Judge: Honorable Joshua D. Wolson ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) March 25, 2024
Before: KRAUSE, MATEY, and CHUNG, Circuit Judges
(Opinion filed: April 11, 2024) _________
OPINION* _________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM
Appellant Frederick Foster, proceeding pro se, appeals orders of the District Court
dismissing his complaint, denying reconsideration, and imposing a pre-filing injunction
on him. For the following reasons, we will affirm.
In November 2011, Foster sued the United States Postal Service (“USPS”), the
Pitney Bowes corporation, and others, alleging violations of the Postal Accountability
and Enhancement Act (“PAEA”), among other related claims. Foster’s claims centered
on the accusation that USPS and Pitney Bowes stole an idea for secure digital
communications that he had previously presented to them and had unsuccessfully
attempted to patent. The District Court dismissed the claims, and the Court of Appeals for
the Federal Circuit affirmed. See Foster v. Pitney Bowes Corp., 549 F. App’x 982 (Fed.
Cir. 2013) (per curiam). Foster also unsuccessfully sought to litigate his claims with the
Postal Regulatory Commission; the Court of Appeals for the D.C. Circuit denied his
petition for review of that agency’s adverse decision. See Foster v. Postal Regul.
Comm’n, 738 F. App’x 1 (D.C. Cir. 2018) (unpublished memorandum decision).
In August 2022, Foster filed a new civil action asserting that the judgments in his
prior proceedings were void because they were procured through wide-ranging “fraud on
the court.” See generally Am. Compl., ECF No. 8. He named a slew of defendants,
including the district judge who oversaw his prior case, the judge’s law clerks, various
members of the United States Attorney’s Office (“USAO”), USPS, Pitney Bowes, and
private attorneys who had participated in the prior litigation. As he had done in his prior
case, Foster moved to disqualify the USAO from representing the government
2 defendants, arguing that such representation was barred by statute. The District Court
denied the motion, citing the Federal Circuit’s rejection of the same argument in Foster’s
prior proceeding.1
The various defendants then moved to dismiss Foster’s complaint for a lack of
subject-matter jurisdiction and failure to state a claim. The District Court dismissed the
complaint, concluding that Foster’s claims were barred by sovereign immunity, judicial
privilege, and issue preclusion. When Foster moved for reconsideration of that decision,
the District Court denied his motion and ordered him to show cause why he should not be
enjoined from pursuing the same issues in future filings. Foster filed a memorandum in
opposition. The District Court rejected his arguments and imposed an injunction
requiring Foster to seek leave of Court before filing any documents related to his
underlying claims. Foster appeals.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s dismissal of Foster’s complaint and may affirm
on any basis supported by the record. See Host Int’l v. MarketPlace PHL, LLC, 32 F.4th
242, 247 n.3 (3d Cir. 2022) (citations omitted); Free Speech Coal., Inc. v. Att’y Gen., 677
F.3d 519, 529–30 (3d Cir. 2012). To survive a motion to dismiss, a complaint must allege
facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Pleadings of pro se litigants are construed liberally,
1 Foster filed and then withdrew a premature appeal from the order denying his motion for disqualification. See C.A. No. 22-3105. We then denied his petition for a writ of mandamus that sought to compel the District Court to disqualify the USAO and to void the judgment in his prior action. See C.A. No. 22-3209.
3 but “pro se litigants still must allege sufficient facts in their complaints to support a
claim.” See Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244–45 (3d Cir. 2013).
Foster’s complaint primarily seeks relief from the judgment in his prior action
based on his allegations that the judge, his staff, and the attorneys involved all committed
fraud on the court. In assessing such claims, we “employ a demanding standard . . .
requiring: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at
the court itself; and (4) that in fact deceives the court.” Herring v. United States, 424 F.3d
384, 390 (3d Cir. 2005). Moreover, “the fraud on the court must constitute egregious
misconduct such as bribery of a judge or jury or fabrication of evidence by counsel.” Id.
(cleaned up).
Foster’s complaint does not meet that demanding standard. The purportedly
fraudulent acts that he identified in his complaint amount to nothing more than legal
arguments made by his litigation opponents and rulings made by the judge that he
believes are erroneous. The mere fact that Foster disagrees with them does not render
them fraudulent or deceptive. Besides, during the prior litigation, Foster vigorously
opposed the arguments and rulings that he now asserts are fraudulent. Having had and
availed himself of that opportunity, he is not due relief from the resulting judgment on
that basis now. Cf. Mazzei v. The Money Store, 62 F.4th 88, 94 (2d Cir. 2023) (collecting
cases expressing an “unwillingness to find fraud on the court where the alleged fraud
could have been redressed in the underlying action”).
Aside from his plea to void the prior judgment, though, Foster sought other relief.
To the extent that the first eleven “counts” of the complaint sought damages from the
4 judge, the judicial clerks, the attorneys, and the parties to the litigation, we agree with the
District Court that “[t]hese counts all arise from communications that someone made in
the regular course of judicial proceedings that were pertinent and material to the relief
sought. The judicial privilege bars them.” ECF No. 56 at 6; see also Capogrosso v. N.J.
Sup. Ct., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam); Gen. Refractories Co. v.
Fireman’s Fund Ins. Co., 337 F.3d 297, 312 (3d Cir. 2003).
We also agree with the District Court that Foster’s “Count XII” is precluded
because it seeks to relitigate issues or claims that were or could have been adjudicated in
the prior litigation. See ECF No. 56 at 6–7 (citing, inter alia, Nationwide Mut. Fire Ins.
Co. v. George V. Hamilton, Inc., 571 F.3d 299, 310 (3d Cir. 2009)). In that count, Foster
sought damages from USPS and Pitney Bowes for the same alleged misappropriation of
his concept for secure digital delivery that was at issue in his prior action. See Am.
Compl. 138–141, ECF No. 8. We agree with the District Court that, even assuming
Foster identified different sources of law for his claim, he is precluded from relitigating
issues that were previously decided on the merits. See, e.g., Mem. Op. 14, Foster v.
Pitney Bowes Corp., No. 2:11-cv-07303, at ECF No. 50 (E.D. Pa. Feb. 8, 2013) (“Any
injury Plaintiff may have incurred as a result of [his invention] becoming public
knowledge was a consequence of Plaintiff submitting a patent application for the
invention and not taking steps to prevent publication.”), aff’d, 549 F. App’x 982 (Fed.
Cir. 2013); see also Doe v. Hesketh, 828 F.3d 159, 171 (3d Cir. 2016).
5 Foster also challenges the District Court’s denial of his motion to disqualify the
USAO from representing USPS and related government defendants.2 As described above,
the District Court’s denial of Foster’s motion cited to “the reasons stated by the Federal
Circuit” in ruling on the same issue during the prior action. ECF No. 25 at 1 (citing
Foster, 549 F. App’x at 988 (“Although 39 U.S.C. § 409(g)(1) does prohibit the DOJ
from representing USPS in certain limited situations, none of these situations apply
here.”)). This was not an abuse of discretion. See United States v. Bellille, 962 F.3d 731,
738 (3d Cir. 2020) (explaining that questions of attorney withdrawal are committed to a
district court’s sound discretion). To the extent that Foster also challenges the district
judge’s refusal to disqualify himself under 28 U.S.C. § 455, we agree that Foster did not
present any reasonable basis for disqualification. See Order, ECF No. 61 (citing, inter
alia, Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004)).
Foster’s appeal also encompasses the District Court’s denial of his motion for
reconsideration, which we review for an abuse of discretion. See United States v. Kalb,
891 F.3d 455, 459 (3d Cir. 2018). The District Court correctly concluded that Foster’s
motion contained only “arguments that he raised in his responsive brief or arguments that
he could have raised but did not. Mr. Foster does not cite any change in law, new
evidence, or actual error of law. Nor does his Motion demonstrate any manifest injustice
from the Court’s ruling, other than he disagrees with it.” ECF No. 59 at 2; see also Kalb,
2 That earlier order merges with the final judgment and is reviewable at this stage. See Fed. R. App. P. 3(c)(4); In re Westinghouse Sec. Litig., 90 F.3d 696, 706 (3d Cir. 1996).
6 891 F.3d at 467 (“[A]rguments [that] could as well have been made earlier . . . [are] not a
proper basis for reconsideration.” (citation omitted)).
Finally, Foster challenges the District Court’s order enjoining him from future
filings, which we also review for an abuse of discretion. See Brow v. Farrelly, 994 F.2d
1027, 1032 (3d Cir. 1993). Before imposing a filing injunction, a district court must
(1) ensure that the situation presents “exigent circumstances, such as a litigant’s
continuous abuse of the judicial process by filing meritless and repetitive actions”;
(2) allow the litigant “to show cause why the proposed injunctive relief should not issue”;
and (3) “narrowly tailor[]” the filing injunction “to fit the particular circumstances of the
case before [that] [c]ourt.” Id. at 1038. Each of these steps was met here. The District
Court issued an order directing Foster to show cause why a filing injunction should not
issue and attached its proposed injunction. See ECF Nos. 59 & 59-1. Foster responded to
that order. See ECF No. 62. The District Court then entered the injunction, coupled with
a narrative statement of Foster’s repeated “meritless motions and successive cases.” ECF
No. 63 at 1–2. The injunction restricted only Foster’s ability to file documents on the
existing dockets or any new case related to the same underlying claims, while also
providing that Foster could seek leave of court to make such new filings if they are not
frivolous or do not seek relief previously denied. See id. at 3. The injunction is thus
narrowly tailored to the circumstances of the case before the District Court, and there was
no abuse of discretion.
7 For the foregoing reasons, we will affirm the District Court’s judgment and
imposition of the filing injunction.3
3 Appellees’ motion for leave to file a supplemental appendix is granted. Appellant’s motion to proceed on the original record is denied. To the extent that Appellant has sought to correct typographical errors in his briefs, we grant that relief and have considered the corrected briefs. We have reviewed and considered Appellant’s other pending motions filed in this Court and, in light of our decision, they are denied.