       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

 PATRICE MOCZEK, PARENT AND NATURAL
GUARDIAN OF K. H., HER DAUGHTER, A MINOR,
           Petitioners-Appellants

                            v.

      SECRETARY OF HEALTH AND HUMAN
                  SERVICES,
              Respondent-Appellee
             ______________________

                       2018-2341
                 ______________________

    Appeal from the United States Court of Federal Claims
in No. 1:16-vv-00930-EGB, Senior Judge Eric G. Bruggink.
                 ______________________

                  Decided: June 5, 2019
                 ______________________

    JAMES B. BLUMENSTIEL, Powell, OH, argued for peti-
tioners-appellants.

    ROBERT PAUL COLEMAN, III, Vaccine/Torts Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by JOSEPH H. HUNT, ALEXIS B. BABCOCK, CATHARINE
E. REEVES.
                  ______________________
2                                              MOCZEK v. HHS




    Before LOURIE, DYK, and O’MALLEY, Circuit Judges.
DYK, Circuit Judge.
    The petitioner, Patrice Moczek, filed a claim on behalf
of her daughter, K.H., under the National Childhood Vac-
cine Injury Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 300aa-
1 through -34 (2012), in the United States Court of Federal
Claims (“Claims Court”). The special master dismissed the
petition for “failure to prosecute” and “insufficient evi-
dence” and later denied the petitioner’s Rule 60(b) motion
seeking reconsideration. We reverse and remand.
                       BACKGROUND
     On August 3, 2016, the petitioner, represented by coun-
sel, filed a petition on behalf of her daughter, K.H., seeking
compensation for an alleged vaccine-related injury, which
allegedly caused leg pain, headaches, fatigue, and other
symptoms. The petitioner claimed that her daughter’s
symptoms were caused by three vaccines, including the
Gardasil® vaccine for human papillomavirus (“HPV”).
Over the months that followed, the petitioner submitted
K.H.’s medical records and reports from two experts: Dr.
Phillip DeMio (one of K.H.’s treating physicians) and
James Lyons-Weiler, Ph.D (a biologist). Both experts con-
cluded that K.H.’s injuries had likely been caused by a re-
action to the Gardasil® vaccine.           In response, the
government filed a report pursuant to Rule 4(c) of the Vac-
cine Rules for the Court of Federal Claims (“Vaccine Rule
4(c) Report”). 1




    1     Rule 4(c) of the Vaccine Rules for the Court of Fed-
eral Claims (“Vaccine Rule 4(c)”) requires the respondent
to “file a report setting forth a full and complete statement
of its position as to why an award should or should not be
MOCZEK v. HHS                                               3



    The government’s report detailed K.H.’s medical his-
tory both before and after she was vaccinated and high-
lighted that K.H. had pre-existing medical issues and that
many of K.H.’s doctors believed that K.H.’s symptoms fol-
lowing vaccination may have been the result of somatiza-
tion (i.e., the generation of physical symptoms in response
to a psychiatric condition such as anxiety). The govern-
ment also argued that the petitioner’s causation theory was
unpersuasive. The government did not submit any expert
reports.
     The special master then held a conference at which he
ordered the petitioner to file a status report indicating
whether she would file an additional expert report to cure
any deficiencies identified in the Vaccine Rule 4(c) Report.
The petitioner indicated that she had retained an immu-
nologist and would file an additional expert report. The
special master ordered that the report be filed by Septem-
ber 8, 2017. On September 12, the petitioner had not yet
filed a supplemental report, and the special master issued
an order requiring the petitioner to file the report immedi-
ately. When the petitioner still had not filed the report by
September 19, the special master issued an order to show
cause why petitioner’s case should not be dismissed for fail-
ure to prosecute. Again, the petitioner failed to respond,
and on September 29, 2017, the special master dismissed
the petitioner’s case for “failure to prosecute” and “insuffi-
cient evidence.” J.A. 6.
   On November 18, 2017, the petitioner filed a motion re-
questing reconsideration of the special master’s dismissal.




granted.” Such a report “must contain respondent’s medi-
cal analysis of petitioner’s claims and must present any le-
gal arguments that respondent may have in opposition to
the petition. General denials are not sufficient.” Vaccine
Rule 4(c)(2).
4                                              MOCZEK v. HHS




The special master ruled that the motion for reconsidera-
tion was untimely and advised that she refile the motion
as a Rule 60(b) motion requesting relief from judgment.
Were the petitioner to do so, the special master indicated
that her motion “could be treated as having been made in
a timely fashion.” J.A. 8. The petitioner subsequently filed
a Rule 60(b) motion. She argued that she was delayed in
responding to the special master’s orders because she had
difficulty reaching the immunology expert whose report
she had been ordered to file and because her counsel did
not receive electronic notice of the court’s orders.
     The special master denied the petitioner’s Rule 60(b)
motion on February 16, 2018. In denying the petitioner’s
motion, the special master concluded that the merits of the
petitioner’s case were “not legally tenable” and therefore
that “granting relief from the judgment dismissing Peti-
tioner’s claim would likely be a futile exercise.” J.A. 17–18.
The special master also found that negligent conduct of pe-
titioner’s counsel was not “excusable.” The Claims Court
affirmed the special master’s denial, and the petitioner ap-
pealed. We have jurisdiction under 28 U.S.C. § 1295(a)(3).
                        DISCUSSION
     Rule 60(b)(1) of the Rules of the Court of Federal
Claims (“Rule 60(b)(1)”) permits the Claims Court to reo-
pen judgment for “mistake, inadvertence, surprise, or ex-
cusable neglect.” “We review an appeal from the [Claims
Court] in a Vaccine Act case de novo, applying the same
standard of review that court applied in reviewing the spe-
cial master’s decision.” Milik v. Sec’y of Health & Human
Servs., 822 F.3d 1367, 1375 (Fed. Cir. 2016). We set aside
the special master’s fact findings only if they are found to
be “arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with the law.” 42 U.S.C. § 300aa-
12(e)(2)(B); Milik, 822 F.3d at 1376.
    The Supreme Court in Pioneer Investment Services Co.
v. Brunswick Ltd. Partnership, 507 U.S. 380, 395 (1993),
MOCZEK v. HHS                                               5



set out four factors that a court should consider in deter-
mining “excusable neglect”: “[1] the danger of prejudice to
the [non-movant], [2] the length of the delay and its poten-
tial impact on judicial proceedings, [3] the reason for the
delay, including whether it was within the reasonable con-
trol of the movant, and [4] whether the movant acted in
good faith.” 2 Nevertheless, the Court recognized that “the
determination is at bottom an equitable one, taking ac-
count of all relevant circumstances surrounding the party’s
omission.” Id.
     We recognize the importance of a special master’s abil-
ity to set a schedule and to enforce a petitioner’s adherence
to that schedule. Here, there is no doubt that petitioner’s
counsel was negligent when he failed to timely respond to
the special master’s orders, or at least to explain why com-
pliance was not possible or should be excused. 3 There were,
in other words, no good reasons for the delay, a factor which
outside the Vaccine Act context has often been held to be
fatal to Rule 60(b) relief. See 11 Charles Alan Wright, Ar-
thur R. Miller & Mary K. Kane, Federal Practice & Proce-
dure § 2858 (3d ed. 2010 & Supp. 2019). Nonetheless, we
find that dismissal of the petitioner’s case here, as opposed
to some lesser sanction, and the special master’s refusal to
grant Rule 60(b) relief, was an abuse of discretion in the
circumstances of this case. Several factors support our con-
clusion.




    2    Although Pioneer dealt with Rule 60 of the Federal
Rules of Civil Procedure, the same standard applies to Rule
60 of the Rules of the Court of Federal Claims. Dobyns v.
United States, 915 F.3d 733, 737 n.1 (Fed. Cir. 2019).
     3   Even if counsel did not receive email notification of
the orders, he had an obligation to monitor the docket, and
his inability to reach the planned expert did not explain his
failure to respond to the special master’s orders.
6                                              MOCZEK v. HHS




     Initially, we note that summary dismissal of a Vaccine
Act case for failure to prosecute in routine cases runs coun-
ter to the core purposes of the Vaccine Act. When the Vac-
cine Act was passed, Congress expressed a concern that the
increased numbers of children purportedly injured by vac-
cines were resorting “to the tort system for some form of
financial relief.” H.R. Rep. No. 99-908, at 4 (1986), re-
printed in 1986 U.S.C.C.A.N. 6344, 6345. Congress ex-
plained that it was concerned that abundant reliance on
the tort system would increase costs on both claimants and
vaccine manufacturers, and, in turn, could jeopardize the
country’s supply of vaccines by making it more difficult for
vaccine manufacturers to obtain liability insurance and re-
main in the vaccine business.            Id. at 6–7, 1986
U.S.C.C.A.N. at 6347–48.
    This concern is reflected in the language of the Vaccine
Act, which requires that a claimant first seek recovery in
the Claims Court before filing a civil tort action. 42 U.S.C.
§ 300aa-11(a)(2)(A). Summary dismissal of potentially
meritorious vaccine claims for failure to prosecute would
thus only serve to undermine one of the overriding con-
cerns that prompted Congress to pass the Vaccine Act in
the first place, as it would redivert vaccine-related injury
claims back to state and federal courts for litigation as tort
claims. The Vaccine Act, moreover, establishes “a federal
‘compensation program’ under which awards are to be
‘made to vaccine-injured persons quickly, easily, and with
certainty and generosity.’” Knudsen by Knudsen v. Sec’y of
Health & Human Servs., 35 F.3d 543, 549 (Fed. Cir. 1994)
(quoting H.R. Rep. No. 99-908, at 3, 1986 U.S.C.C.A.N. at
6344). Nonetheless, summary dismissal for failure to pros-
ecute will be appropriate in exceptional cases. But for the
reasons discussed below, this is not such an exceptional
case.
    Multiple considerations (demonstrating that this is not
an exceptional case) counsel against dismissal here. First,
the petitioner’s failure to respond to the special master’s
MOCZEK v. HHS                                               7



orders only delayed proceedings for a short period (a little
over two months). Second, there has been no showing of
prejudice by the government resulting from the delay.
Third, there is no claim that the petitioner acted in bad
faith. Fourth, counsel’s negligence is not likely to be re-
peated since petitioner’s counsel has represented that he
would withdraw from the case if the Rule 60(b) motion is
granted.
     Finally, the special master’s conclusion that the peti-
tioner’s claim was “not legally tenable” appears to have
been the primary reason for the denial of Rule 60(b)(1) re-
lief. This determination is akin to a determination that the
petitioner’s complaint could not have survived summary
judgment. We disagree.
    The petitioner was the only party to submit expert tes-
timony in this case. And all three of the petitioner’s experts
testified in support of the theory that the Gardasil® vac-
cine likely caused K.H.’s health problems. Dr. DeMio (one
of K.H.’s treating physicians) testified to “a high degree of
medical certainty” that K.H.’s “severe medical problems
were caused by the . . . vaccines that she received on or
about August 15, 2013.” J.A. 51–52. Dr. Lyons-Weiler (a
biologist) testified, based on a review of scientific litera-
ture, that K.H.’s “symptoms, which appeared after admin-
istration of Gard[a]sil® Quadrivalent vaccine on the same
day as administration of [two other vaccines] are consistent
with a growing number of serious, if sometimes difficult to
diagnose adverse events reported after HPV vaccination.”
J.A. 76. And Dr. Miller (the immunologist retained pursu-
ant to the special master’s order) testified that K.H.’s
symptoms were “more likely than not . . . a post-Gard[a]sil
event.” J.A. 137.
    Moreover, K.H.’s medical records do not contradict a
finding that K.H.’s injuries were caused by the Gardasil®
vaccine. Though these records reveal that K.H. suffered
some medical issues before being vaccinated and that some
8                                             MOCZEK v. HHS




of these problems manifested in symptoms similar to those
she suffered after vaccination, it is, at minimum, clear that
the medical records showed that the severity of these symp-
toms was far greater after K.H. received the Gardasil® vac-
cine. Before the vaccinations, K.H. was a successful
student. After receiving the Gardasil® vaccine she was in
so much pain that she was no longer able to attend school.
Although the petitioner’s expert testimony and other evi-
dence in support of her vaccine claim may ultimately prove
to be insufficient, it is not facially “insufficient.”
    This case is similar to M.D. by and through Doe v. New-
port-Mesa Unified School District, 840 F.3d 640 (9th Cir.
2016) (per curiam). In Newport-Mesa, the Ninth Circuit
found that the district court had abused its discretion in
denying the plaintiffs’ request for relief from judgment un-
der Rule 60(b)(1) based on excusable neglect. Id. at 642–
43. In reaching this decision, the court of appeals ex-
plained that three of the four Pioneer factors supported
granting relief: the delay was short and the impact of the
delay on the proceedings was minimal, the defendants had
not been prejudiced by the plaintiffs’ delay, and there was
no evidence of bad faith. Id. at 643. The district court had
concluded that the plaintiffs’ reason for the delay did not
support a finding of excusable neglect, but the Ninth Cir-
cuit concluded that that could not alone justify a denial of
relief where three other factors favored granting it because
“counsel’s neglect [was not] so egregious that it out-
weigh[ed] the remaining three factors.” Id.
                       CONCLUSION
    For the foregoing reasons, we hold that the special
master abused his discretion in reaching what the special
master himself recognized was “a harsh result,” J.A. 23—
dismissing the petitioner’s complaint and subsequently
denying the petitioner’s Rule 60(b) motion. We reverse and
remand.
            REVERSED AND REMANDED
MOCZEK v. HHS           9



                COSTS
   No costs.
