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HERRING v. U.S.

No. 04-4270.

424 F.3d 384 (2005)

Patricia J. HERRING, Individually; Judith Palya Loether, Individually and as a Living Heir of Elizabeth Palya (Deceased); William Palya, Individually and as a Living Heir of Elizabeth Palya (Deceased); Robert Palya, Individually and as a Living Heir of Elizabeth Palya (Deceased); Susan Brauner, Individually and as a Living Heir of Phyllis Brauner (Deceased); Catherine Brauner, Individually and as a Living Heir of Phyllis Brauner (Deceased), Appellants v. UNITED STATES of America.

United States Court of Appeals, Third Circuit.

Filed September 22, 2005.

Attorney(s) appearing for the Case

Wilson M. Brown, III (Argued), Lori J. Rapuano, Angie Halim, Drinker Biddle & Reath, LLP, Philadelphia, PA, for Appellants.

Peter D. Keisler, Assistant Attorney General, Patrick L. Meehan, United States Attorney, Barbara L. Herwig, August E. Flentje (Argued), Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., for Appellee.

Before ALITO, VAN ANTWERPEN and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

In this case we decide whether the Government's assertion of military secrets privilege for an accident report discussing the October 6, 1948 crash of a B-29 bomber which killed three civilian engineers along with six military personnel, at Waycross, Georgia, was fraud upon the court.

I.

Actions for fraud upon the court are so rare that this Court has not previously had the occasion to articulate...

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