            In the United States Court of Federal Claims
                                          No. 13-421V
                                (Filed Under Seal: June 30, 2015)
                                    (Reissued: July 20, 2015)*

                                                      )
    G.G.M., a Minor, by and Through her               )
    Guardian Ad Litem, LORENA MORA,                   )
                                                      )
                        Petitioner,                   )        Relief from Judgment; RCFC
                                                      )        60(b); Vaccine Rule 36(a)
    v.                                                )
                                                      )
    SECRETARY OF HEALTH AND HUMAN                     )
    SERVICES,                                         )
                                                      )
                        Respondent.                   )
                                                      )
                                                      )
                                                      )


         Danny Chia-Chi Soong, Law Office of Danny Soong, West Covina, CA, for
         plaintiff.

         Claudia Barnes Gangi, Senior Trial Attorney, with whom were Catharine E.
         Reeves, Assistant Director, Vincent J. Matanoski, Deputy Director, Rupa
         Bhattacharyya, Director, and Benjamin C. Mizer, Principal Deputy Assistant
         Attorney General, United States Department of Justice, Civil Division, Torts
         Branch, Washington, D.C., for defendant.


                                      OPINION AND ORDER

KAPLAN, Judge.

        This case is before the Court on a motion for review of the February 27, 2015 decision of
Special Master Laura Milman denying the petitioner’s motion seeking relief from judgment
pursuant to Rule 60(b) of the Rules of the Court of Federal Claims (“RCFC”). For the reasons
set forth below, the Court concludes that the Special Master’s decision is neither arbitrary,
capricious, an abuse of discretion, nor contrary to law. 42 U.S.C. § 300aa-12(e)(2)(B).
Accordingly, the motion for review must be DENIED.

*
 In accord with the Rules of the Court of Federal Claims, App. B, Rule 18(b), this opinion was
initially filed under seal to afford the parties fourteen days to propose redactions. The parties did
not propose any redactions. Accordingly, the opinion is reissued publically in its original form.
                                                  1
                                        BACKGROUND

I.     The Original Petition and Its Voluntary Dismissal

        This case arose out of a petition for compensation under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-1 to 300aa-34 (2012)1 that Lorena Mora, acting as guardian ad
litem for her daughter, G.G.M., filed on June 25, 2013. According to the petition, G.G.M. was
born in 2010. Pet. Vaccine Compensation ¶ 1, ECF No. 1. Petitioner states that the pregnancy
and delivery were normal, without complications for either mother or child. Id. at ¶ 2. Prior to
the facts given rise to this case, petitioner alleges, G.G.M. was in good health and was not
diagnosed with any medical conditions. Id. at ¶ 4; Mot. for Review at 3, Mar. 26, 2015, ECF No.
34.

        When G.G.M. was two years old, Mrs. Mora, concerned about a rash on G.G.M.’s right
leg that had been there for three days, took her to a healthcare provider. Special Master’s Order
at 1, August 23, 2013, ECF No. 6 [hereinafter “SM Order”]. The provider diagnosed G.G.M.
with dermatitis. Id. During the visit, G.G.M. received the influenza (“flu”) vaccine. Id. She
had previously received a flu vaccine on October 26, 2011. Id. Two days after receiving the
second flu vaccine, G.G.M. complained of abdominal pain, cried in pain, was unable to walk,
and had not urinated since the previous night. SM Order at 1; Pet. ¶ 5. Mrs. Mora drove G.G.M.
to the emergency room. Mot. for Review at 3. The doctor found that G.G.M. had sensory
change and focal weakness, decreased tone in her lower extremities, and decreased deep tendon
reflexes. SM Order at 1. She had no response to painful stimuli up to her abdomen. Id. at 1-2.
The doctor narrowed down a possible diagnosis to botulism, transverse myelitis, or Guillain-
Barré Syndrome. Id. G.G.M. was then transferred to the Kaiser Hospital where she was
hospitalized from September 7, 2012 to October 6, 2012 and diagnosed with transverse myelitis
caused by the flu vaccine. Id. at 2.

        Petitioner states that G.G.M. is now completely paraplegic. Mot. for Review at 3. She
further states that G.G.M. is “unable to ambulate and maneuvers around in a wheelchair” and
that she “has a permanent catheter and has to be changed every three to four hours.” Id. In
addition, petitioner asserts that as she “continues to grow toward adulthood, the life care planner
estimate[s] that G.G.M. will need in-home health care, an extensive number of various
orthopedic and urologic surgeries, and assorted medication due to her medical conditions
resulting from her transverse myelitis.” Id.

       After the petition for compensation was filed, petitioner made a settlement demand on
March 11, 2014 to which the government made a counteroffer on July 11, 2014. Special
Master’s Decision at 2, July 21, 2014, ECF No. 17. After reviewing the government’s


1
  The Vaccine Act is a remedial statute that compensates persons injured by a vaccine under a
no-fault regime. Cloer v. Sec’y of HHS, 654 F.3d 1322, 1350 (2011) (Dyk, J., dissenting). A
successful petitioner receives compensation from a fund administered by the government, which
is funded by a tax imposed on the manufacturers, producers, and importers of vaccines. 26
U.S.C. § 4131 (2012).


                                                 2
counteroffer, petitioner requested a status conference with the Special Master and the
government. Id. During the status conference, which was held on July 21, 2014, petitioner’s
counsel reported that petitioner had “decided that she could receive more compensation in civil
court against the vaccine administrator and manufacturer because of the inapplicability of the
collateral source rule in the Vaccine Program and the $250,000.00 cap for pain and suffering
under the Vaccine Act.” Id.2

         Under the Vaccine Act, “[n]o person may bring a civil action for damages . . . unless a
petition has been filed . . . for compensation under the Program . . . and the United States Court
of Federal Claims has issued a judgment under [42 U.S.C. § 300aa-12] . . . and such person
elects under [42 U.S.C. § 300aa-21(a)] to file such an action.” 42 U.S.C. § 300aa-11(a)(2)(A).
Accordingly, in order to secure the necessary judgment, petitioner moved to dismiss her vaccine
case. Mot. for Review at 3. The Special Master granted the motion to dismiss on June 11, 2014
without making any findings of fact or conclusions of law as to the merits of the petition for
compensation. Special Master’s Decision at 2.

        On August 11, 2014, the parties filed a joint notice of their intent not to seek review of
the Special Master’s decision dismissing the case. Joint Notice of Decision Not to Seek Review
at 1, ECF No. 19. The Clerk of the Court entered judgment on August 29, 2014, ECF No. 20,
and petitioner filed a Notice of Election to File a Civil Action on September 26, 2014. ECF No.
22.

II.    Petitioner’s Civil Action

         On October 14, 2014, the petitioner filed a suit in the Los Angeles Superior Court
alleging causes of action for strict products liability for manufacturing defect, design defect, and
failure to warn against Sanofi Pasteur, Inc. (“Sanofi”), the manufacturer of the flu vaccine
administered to G.G.M., and unnamed defendants, Does 1 through 100. Mot. for Review at 4;
Attach. to Notice of Removal ¶¶ 21-57, G.M. v. Sanofi Pasteur, Inc., No. 2:14-09549 (C.D. Cal.
Dec. 16, 2014). On December 4, 2014, petitioner demanded arbitration with Kaiser Permanente
for medical malpractice and lack of informed consent based on the alleged failure of G.G.M.’s
pediatrician and nurse to provide the Vaccine Administration Sheet to petitioner prior to
administering G.G.M.’s vaccination on September 5, 2012. Mot. for Review at 4.

        On December 16, 2014, Sanofi filed a Notice of Removal to federal court based on
diversity jurisdiction and the United States Supreme Court’s decision in Bruesewitz v. Wyeth
L.L.C., 562 U.S. 223 (2011). Notice of Removal at 2, G.M. v. Sanofi Pasteur, Inc., No.2:14-
09549 (C.D. Cal. Dec. 16, 2014). In that case, the Supreme Court, interpreting 42 U.S.C. §
300aa–22(b)(1),3 held that “the National Childhood Vaccine Injury Act preempts all design-


2
 The status conference was not recorded or transcribed. The Court, accordingly, relies upon the
Special Master’s decision as the basis for its understanding of the statements made by
petitioner’s counsel at the conference.
3
 42 U.S.C. § 300aa–22(b)(1) provides that “[n]o vaccine manufacturer shall be liable in a civil
action for damages arising from a vaccine-related injury or death associated with the
                                                  3
defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for
injury or death caused by vaccine side effects.” Bruesewitz, 562 U.S. at 243. On February 10,
2015, Sanofi filed a Rule 12(b) motion to dismiss petitioner’s entire product liability suit on the
basis of this holding and on the basis of section 300aa-22(c) of the Vaccine Act.4 Corrected
Notice of Motion & Motion to Dismiss, G.M. v. Sanofi Pasteur, Inc., No. 2:14-09549 (C.D. Cal.
February 10, 2015). According to Sanofi, petitioner’s manufacturing defect claim was also
preempted by the act since it was “simply a repackaged version of their preempted design defect
claims.” Id. at 14. In any case, Sanofi argued that petitioner’s manufacturing defect claim was
“inextricably related, and cannot be separated from the defect design claim.” Id.

        On April 28, 2015, defendant’s motion to dismiss was granted, and petitioner’s complaint
was dismissed with leave to amend. Order at 2, G.M. v. Sanofi Pasteur, Inc., No. 2:14-09549
(C.D. Cal. April 28, 2015). Thereafter, petitioner amended her complaint to allege that Sanofi
had post-market data showing that at least two other children who received a flu vaccine from
the batch petitioner received had suffered severe adverse reactions to the vaccine. First Am.
Compl. ¶¶ 32, 41-42, G.M. v. Sanofi Pasteur, Inc., No. 2:14-09549 (C.D. Cal. April 28, 2015).
Petitioner alleged causes of action for strict product liability for manufacturing defect and
improper warnings, negligent manufacturing, intentional misrepresentation by concealment, and
breaches of express and implied warranties. Id. at ¶¶ 46-94.

III.   Petitioner’s Motion Under Rule 60(b) for Relief from Judgment

        In the meantime, on January 21, 2015, about a month after Sanofi filed its notice of
removal to federal court, and several weeks before it moved to dismiss, petitioner filed a motion
with the Special Master for relief from judgment pursuant to RCFC 60(b)(1) or, in the
alternative, 60(b)(6). Mot. Relief J. 1, ECF No. 23. Petitioner requested that her vaccine claim
be restored without prejudice in exchange for dismissing her pending product liability lawsuit
against Sanofi and withdrawing her demand for arbitration with Kaiser Permanente. Id. at 2. In
support of the motion, petitioner’s counsel stated that, at the time petitioner moved for voluntary
dismissal, counsel had been unaware that any design defect claim or failure to warn claim against
the vaccine manufacturer was preempted by the Vaccine Act. Id. at 4-5, 9 (Decl. of Danny
Soong ¶ 4). Petitioner argued that her counsel’s ignorance of both the Supreme Court’s decision
in Bruesewitz and section 300aa-22(c) of the Vaccine Act constitutes “mistake, inadvertence,
surprise or excusable neglect” under RCFC 60(b)(1). Id. at 4-5. In the alternative, petitioner
argued that the Special Master should set aside judgment under the catch-all provision in RCFC


administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects
that were unavoidable even though the vaccine was properly prepared and was accompanied by
proper directions and warnings.”
4
  That provision states that “[n]o vaccine manufacturer shall be liable in a civil action for
damages arising from a vaccine-related injury or death associated with the administration of a
vaccine after October 1, 1988, solely due to the manufacturer’s failure to provide direct warnings
to the injured party (or the injured party’s legal representative) of the potential dangers resulting
from the administration of the vaccine manufactured by the manufacturer.” 42 U.S.C. § 300aa-
22(c).
                                                  4
60(b)(6), which states that the court may relieve a party from final judgment for “any other
reason that justifies relief.” Id. at 6-7.

IV.    The Special Master’s Decision Denying Petitioner’s Motion

        The Special Master denied the petitioner’s motion. She noted that the factors to be
considered in determining whether a movant has made a prima facie case for relief under Rule
60(b)(1) are: “(1) whether the movant has a meritorious claim or defense; (2) whether the
nonmovant would be prejudiced by the granting of relief; and (3) whether the matter sought to be
relieved was caused by the movant’s own culpable conduct.” Mora v. Sec’y of HHS, No. 13-
421V, 2015 WL 1275389, at *2 (Fed. Cl. Spec. Mstr. Feb. 27, 2015) (quoting Orient Overseas
Container Line (UK) Ltd. v. United States, 52 Fed. Cl. 805, 807 (Fed. Cl. 2002)). The Special
Master concluded that G.G.M. did have a meritorious (legally tenable) claim in that “the petition
was timely; petitioner filed an affidavit, proof of vaccination, and accompanying medical
records; and several treating physicians opined that G.G.M.’s vaccination caused her injury.” Id.
at *3. She also observed that the respondent had not argued that she would be prejudiced in any
way if the motion for relief from judgment were granted and concluded that she did not foresee
any significant prejudice against respondent if relief were granted. Id. at *4.

        The Special Master then turned to the third factor: “whether the matter sought to be
relieved was caused by the movant’s own culpable conduct.” Id. at *4 (quoting Orient Overseas,
52 Fed. Cl. at 807). She noted that the decision to move for voluntary dismissal was premised
upon petitioner’s counsel’s ignorance of the applicable law, which she found to violate the
attorney’s “duty to his client to provide competent legal service, which includes staying apprised
of applicable statutory law and case law.” Id. at *4. The Special Master found that relief under
Rule 60(b)(1) would be improper because of what she called “a well-established rule that gross
carelessness, ignorance of the rules, and/or ignorance of the law are not sufficient bases to afford
Rule 60(b)(1) relief.” Id. (citing Pettle v. Bickham, 410 F.3d 189, 192 (5th Cir. 2005); Pryor v.
U.S. Postal Serv., 769 F.2d 281, 287 (5th Cir. 1985); Bridgham v. Sec’y of HHS, 33 Fed. Cl.
101, 105 (Fed. Cl. 1995)).

         The Special Master noted that “[m]any of the Vaccine Act cases involving Rule 60(b)(1)
concern the dismissal of a case for an attorney’s failure to meet deadlines.” Id. (citing Freeman
v. Sec’y of HHS, 35 Fed. Cl. 280, 282 (Fed. Cl. 1996); Coleman v. Sec’y of HHS, No. 06-
0710V, 2011 WL 6828475, at *4 (Fed. Cl. Spec. Mstr. 2011)). But, she reasoned, “a dismissal
decision granting a motion for voluntary dismissal is quite different from a dismissal decision for
failure to prosecute following counsel’s failure to comply with deadlines.” Id. Thus, “[w]hereas
a decision for failure to prosecute may be unexpected by the attorney, a decision following a
motion for voluntary dismissal is not. A motion for voluntary dismissal is an extreme and
deliberate action that should be taken only with the utmost care, and attorneys should be
expected to fully research the consequences of a voluntary dismissal.” Id. (emphasis in original).

        Further, the Special Master observed, “it is not fundamentally unfair to deny relief to
petitioner due to her counsel’s ignorance of the law and his failure to adequately research the
consequences of a voluntary dismissal” because “[p]etitioners are held accountable for the acts
and omissions of their chosen legal counsel.” Id. at *5 (citing Pioneer Inv. Servs. Co. v.

                                                 5
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993) (holding that petitioner cannot avoid
“the consequences of the acts or omissions of [his] freely selected agent. Any other notion
would be wholly inconsistent with our system of representative litigation, in which each party is
deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts,
notice of which can be charged upon the attorney.’”)).

         The Special Master also declined to provide petitioner relief under Rule 60(b)(6). Under
that rule, a court may relieve a party from judgment for “any other reason that justifies relief.”
RCFC 60(b)(6). The Special Master found that the petitioner had failed to establish that absent
relief, “a grave miscarriage of justice” would result. Id. at *5 (quoting Coleman, 2011 WL
6828475, at *3). She noted that while petitioner could not proceed with her design defect or
failure to warn claim, she could still pursue her pending manufacturing defect claim against the
vaccine manufacturer and that she still had a pending demand for arbitration against the vaccine
administrator. Id. Further, she observed, the petitioner might recover additional damages in a
future legal malpractice suit. Id.

         Moreover, the Special Master reasoned, “even if petitioner’s other claims were
completely unviable, she has not shown that these are ‘extraordinary circumstances’ in which she
is ‘faultless.’” Id. at *6 (citing Pioneer, 507 U.S. at 393). In that regard, she reiterated that
“petitioner’s counsel’s failure to research the repercussions of a voluntary dismissal was culpable
conduct, and this conduct is imputed to petitioner.” Id. While acknowledging petitioner’s
argument that vacating the judgment “would further the purpose of the Vaccine Act by
protecting an injured child’s right to receive a decision on the merits for her vaccine injury
claim,” the Special Master observed that “there is also a strong public policy in the ‘overriding
interest in the finality and repose of judgments.’” Id. (quoting, Vessels v. Sec’y of HHS, 65 Fed.
Cl. 563, 569 (2005)).

                                         DISCUSSION

I.     Standard of Review

        Under the Vaccine Rules, a party may seek relief from judgment pursuant to RCFC 60.
Vaccine Rule 36(a). If the petition was not previously assigned to a Court of Federal Claims
judge, the motion is referred to the previously assigned special master. Vaccine Rule 36(a)(2).

       RCFC 60(b) is identical to Rule 60(b) of the Federal Rules of Civil Procedure. It
provides that:

       On motion and just terms, the court may relieve a party or its legal representative
       from a final judgment, order, or proceeding for the following reasons:
       (1) mistake, inadvertence, surprise, or excusable neglect;
       (2) newly discovered evidence that, with reasonable diligence, could not have been
       discovered in time to move for a new trial under RCFC 59(b);
       (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
       misconduct by an opposing party;
       (4) the judgment is void;

                                                6
       (5) the judgment has been satisfied, released, or discharged; it is based on an earlier
       judgment that has been reversed or vacated; or applying it prospectively is no longer
       equitable; or
       (6) any other reason that justifies relief.

        In ruling on a motion under Rule 60(b) a court must strike “a proper balance between the
conflicting principles that litigation must be brought to an end and that justice should be done.”
Hutchins v. Zoll Med. Corp., 492 F.3d 1377, 1386 (Fed. Cir. 2007) (quoting 11 Charles A.
Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 2851, p. 227 (2d ed.
1995)).

        The petitioner does not challenge the Special Master’s conclusion denying her request for
relief under Rule 60(b)(1). Instead she seeks review of the Special Master’s conclusion denying
relief under Rule 60(b)(6). Rule 60(b)(6) has been characterized as a “grand reservoir of
equitable power to do justice in a particular case,” although not a “bottomless” one. Lazare
Kaplan Int’l, Inc. v. Photoscribe Techs., Inc., 714 F.3d 1289, 1295 (Fed. Cir. 2013) (quoting
Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012)).

         A motion for relief under Rule 60(b)(6) may not be premised on one of the grounds for
relief set forth in subsections (b)(1) through (b)(5). Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847, 863 (1988); Paul Revere Variable Annuity Ins. Co. v. Zang, 248 F.3d 1, 5 (1st Cir.
2001) (“The residual catchall provision [of the relief from judgment rule] allows a court to
relieve a party from a final judgment where such relief is appropriate to accomplish justice, but
the reasons for that relief are not encompassed by the other provisions of the rule.”). These
subsections are “mutually exclusive.” Pioneer, 507 U.S. 380 at 393.

        “As a remedial provision, Rule 60(b) is to be ‘liberally construed for the purposes of
doing substantial justice.’” Patton v. Sec’y of HHS, 25 F.3d 1021, 1030 (Fed. Cir. 1994) (citing
6A James W. Moore and Jo Desha Lucas, Moore’s Federal Practice ¶¶ 60.18[8], 60.19 (2d ed.
1993)). At the same time, “[t]he United States Supreme Court has ‘cautioned that the Rule
should only be applied in ‘extraordinary circumstances.’” Perry v. United States, 558 F. App’x.
1004, 1006 (Fed. Cir. 2014) (quoting Liljeberg, 486 U.S. at 864) (alterations omitted); see also
Info. Sys. & Networks Corp. v. United States, 994 F.2d 792, 795 (Fed. Cir. 1993) (observing that
“subsection (6) [of Rule 60(b)] requires a showing of ‘extraordinary circumstances’”); CTS
Corp. v. Piher Int’l Corp., 727 F.2d 1550, 1555 (Fed. Cir. 1984) (“Unless exceptional or
extraordinary circumstances are shown, a Rule 60(b)(6) motion is generally not granted.”).

         The Special Master’s decision whether to grant or deny relief under Rule 60(b) is
reviewed under an abuse of discretion standard. Patton, 25 F.3d at 1029. “An abuse of
discretion exists ‘when the trial court’s decision is clearly unreasonable, arbitrary or fanciful, or
is based on clearly erroneous findings of fact or erroneous conclusions of law.’” Lazare Kaplan
Int’l, Inc., 714 F.3d at 1293 (quoting Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d 1378, 1382 (Fed.
Cir. 2002)).




                                                  7
II.    Application of Standard in This Case

        This is a difficult case. There is no question that the petitioner has been very poorly
served by her counsel. Counsel himself has characterized as “grossly negligent” his failure to
conduct basic research concerning the viability of his alternative litigation strategy before
requesting dismissal of the vaccine compensation petition. Mot. for Review at 8. Further, as the
petitioner has noted, counsel’s failure to conduct basic legal research has had and will continue
to have extremely negative repercussions for G.G.M. and her family. See id. at 11. If the
voluntary dismissal stands, they will be deprived of an opportunity to prove G.G.M.’s
entitlement to compensation under the Vaccine Act.

         Nonetheless, the standards for granting relief under Rule 60(b)(6) are demand, and the
determination whether they are met in any particular instance is a highly discretionary one. In
this case, the Special Master decided not to exercise her discretion to set aside her order
dismissing the petition because she concluded that the negligence of petitioner’s counsel must be
imputed to the petitioner and because the dismissal was the product of a voluntary and deliberate,
albeit ill-advised, action taken by the petitioner (through her counsel). Regrettably, and for the
reasons set forth below, the Court has concluded that the Special Master’s decision must be
affirmed because she acted within her discretion in denying plaintiff’s motion.

        The first obstacle to petitioner’s argument that the Special Master abused her discretion is
the line of Supreme Court cases that have held, in analogous circumstances, that “clients must be
held accountable for the acts and omissions of their attorneys.” Pioneer, 507 U.S. at 396
(holding that on the facts of the case, the failure of respondent’s counsel to file timely proof of a
claim was the result of “excusable neglect” within the meaning of Rule 9006(b)(1) of the Federal
Rules of Bankruptcy Procedure, but that the court of appeals had erred in not attributing
counsel’s fault to the respondent); see also Maples v. Thomas, 132 S. Ct. 912, 922 (2012)
(“Negligence on the part of a prisoner’s postconviction attorney does not qualify as ‘cause’” for
petitioner’s procedural default for purposes of establishing his entitlement to seek federal habeas
relief because “the attorney is the prisoner’s agent, and under ‘well-settled principles of agency
law,’ the principal bears the risk of negligent conduct on the part of his agent.”) (quoting
Coleman v. Thomas, 501 U.S. 722, 753-754 (1991)). Cf Link v. Wabash R.R. Co., 370 U.S. 626,
633 (1962) (holding that district court did not abuse its discretion by dismissing action for failure
to prosecute and rejecting argument that “dismissal of petitioner’s claim because of his counsel’s
unexcused conduct imposes an unjust penalty on the client,” explaining that “[p]etitioner
voluntarily chose this attorney as his representative in the action, and he cannot now avoid the
consequences of the acts or omissions of this freely selected agent”).

         Applying these principles, one circuit—the Seventh—has categorically rejected the
notion that an attorney’s gross negligence may ever provide justification for affording his client
relief under Rule 60(b), and another—the Second—has expressed reluctance to base Rule 60(b)
relief on such negligence. Dickerson v. Bd. of Educ., 32 F.3d 1114, 1118 (7th Cir.1994)
(observing that “counsel’s negligence, whether gross or otherwise, is never a ground for Rule
60(b) relief”); see also United States v. 7108 W. Grand Avenue, 15 F.3d 632, 634 (7th Cir. 1994)
(rejecting Rule 60(b)(6) relief applying agency principles and holding that clients were bound by
their attorney’s acts, even if willful or grossly negligent), cert. denied, Flores v. United States,

                                                 8
512 U.S. 1212 (1994)); Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986) (noting Second
Circuit’s reluctance to adopt rule that attorney’s gross negligence can supply basis for relief
under Rule 60(b)(6)).5

        To be sure, several courts of appeals have found that these agency principles do not bar
relief under Rule 60(b)(6) where an attorney’s conduct has been “grossly negligent,” but a close
review of those decisions reveals, as described below, a common thread: attorney conduct that
was so egregious that the courts concluded that counsel had effectively abandoned and/or
affirmatively misled their clients. Moreover, as also discussed below, in all such cases the
judgment sought to be vacated was either a default judgment or a dismissal for failure to
prosecute, and not a party’s voluntary, albeit ill-advised, decision to dismiss their complaint.

        Thus, in Community Dental Services v. Tani, 282 F.3d 1164, 1171-72 (9th Cir. 2002),
the district court denied a defendant’s Rule 60(b)(6) motion for relief from a default judgment,
which relied upon a showing that counsel’s gross neglect of the case was responsible for the
entry of judgment against the defendant. The district court reasoned that the defendant could not
rely upon the negligence of his counsel to show the existence of the extraordinary circumstances
required to justify relief because the defendant was chargeable with the negligent acts of his
counsel under principles of agency law, as described above. 282 F.3d at 1168. The court of
appeals, however, reversed. Id. at 1172. It noted that several circuits had “distinguished a
client’s accountability for his counsel’s neglectful or negligent acts—too often a normal part of
representation—and his responsibility for the more unusual circumstance of his attorney’s
extreme negligence or egregious misconduct.” Id. at 1168. “These courts,” the Community
Dental Services court observed, “have concluded that an unknowing client should not be held
liable on the basis of a default judgment resulting from an attorney’s grossly negligent conduct,
and that in such cases sanctions should be imposed on the lawyer, rather than on the faultless
client.” Id. at 1169.6



5
  Another circuit—the Eleventh—has held that any attorney error which does not fall into the
category of “excusable neglect” under Rule 60(b)(1) cannot serve as the basis for relief under
Rule 60(b)(6) because “60(b)(1) and (b)(6) are mutually exclusive” so that “a court cannot grant
relief under (b)(6) for any reason which the court could consider under (b)(1).” Solaroll Shade &
Shutter Corp., Inc. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1133 (11th Cir. 1986).
6
  The court of appeals cited decisions in Boughner v. Secretary of Health, Education & Welfare,
572 F.2d 976, 978 (3d Cir. 1978), Shepard Claims Service, Inc. v. William Darrah & Associates,
796 F.2d 190, 195 (6th Cir. 1986), and L.P. Steuart, Inc. v. Matthews, 329 F.2d 234, 235 (D.C.
Cir. 1964) as precedent from other circuits which have held that counsel’s grossly negligent
conduct could serve as the basis for affording relief from a default judgment under Rule 60(b)(6).
Cmty. Dental Servs., 282 F.3d at 1168-69. Although the Ninth Circuit stated that it was
“join[ing] the Third, Sixth, and Federal Circuits” in so holding, its discussion of the case law did
not include any Federal Circuit decisions. The court of appeals did, however, cite a decision by
the Claims Court (Primbs v. United States, 4 Cl. Ct. 366, 370 (1984), aff’d 769 F.2d 159 (Fed.
Cir. 1985)). Cmty. Dental Servs., 282 F.3d at 1169. It seems likely that the court of appeals was
confusing the Claims Court (whose decisions are not binding on the Federal Circuit) with the
                                                 9
        Accordingly, the Ninth Circuit held that “where the client has demonstrated gross
negligence on the part of his counsel, a default judgment against the client may be set aside
pursuant to Rule 60(b)(6).” 282 F.3d at 1169. It concluded that “extraordinary circumstances”
existed to justify granting relief from the default judgment based on the record in that case, in
which the defendant’s attorney had ignored court orders, neglected motions, missed hearings and
other court appearances, failed to file pleadings or serve them on opposing counsel, and
otherwise “virtually abandoned his client by failing to proceed with his client’s defense despite
[repeated] court orders to do so.” Id. at 1170-71; see also Lal v. California, 610 F.3d 518, 524
(9th Cir. 2010) (granting relief from dismissal for failure to prosecute where attorney virtually
abandoned client and misled him); Boughner, 572 F.2d at 978 (vacating judgment where
attorney’s “egregious conduct amounted to nothing short of leaving his clients unrepresented”);
Jackson v. Washington Monthly Co., 569 F.2d 119, 122 (D.C. Cir. 1977) (Rule 60(b)(6) relief
appropriate where attorney was “grossly rather than just mildly negligent toward his client” and
“might also have misled the client by reassuring him that the litigation was continuing smoothly
when in fact it was suffering severely from lack of attention”); cf. Heim v. Comm’r of Internal
Revenue, 872 F.2d 245, 248 (8th Cir. 1989) (stating that “any errors committed by [counsel],
even accepting the designation of gross negligence, do not constitute an adequate showing of
‘exceptional circumstances’” and distinguishing cases granting relief for attorney negligence
because in those cases client was left virtually unrepresented).

         As is readily apparent, the nature of the attorney negligence in this case is different in
kind (and degree) from the nature of the negligence in Community Dental Services and the cases
it cited. In this case, petitioner’s allegations are not that counsel effectively abandoned his client.
Rather, petitioner alleges that counsel negligently failed to perform basic legal research, which
led him to provide erroneous legal advice that resulted in a strategic misstep—the decision to
voluntarily dismiss the vaccine case. That the Special Master was not willing to extend the
rationale of decisions like Community Dental Services to this different context cannot be
characterized as an abuse of her considerable discretion under Rule 60(b)(6) in striking a balance
between the interest in the finality of judgments and preventing injustice to individuals.

        Further, none of the cases in which the courts of appeals concluded that Rule 60(b)(6)
relief could be predicated upon counsel’s gross negligence involved—as does the present one—a
request for relief from the consequences of a voluntary dismissal. As the Special Master noted,
there is significant support for the view that Rule 60(b)(6) relief is not available in a case where a
party has made a decision (albeit an ill-advised one) to voluntarily dismiss a case or to not file an
appeal. Nemaizer, 793 F.2d at 62 (“[A]n attorney’s failure to evaluate carefully the legal
consequences of a chosen course of action provides no basis for relief from a judgment” under
Rule 60(b)(1) or 60(b)(6)); Pettle, 410 F.3d at 193 (denying relief under Rule 60(b) where
plaintiff “made a specific choice to voluntarily request dismissal of his case with prejudice
without fully understanding the consequences of his decision on his state court action”); Edward
H. Bohlin Co. v. Banning Co., 6 F.3d 350, 356–57 (5th Cir. 1993) (quoting United States v.
O’Neil, 709 F.2d 361, 373 n.12 (5th Cir. 1983) observing that “[t]he broad power granted by


Court of Claims (whose decisions the Federal Circuit must follow). Nat’l Neighbors, Inc. v.
United States, 839 F.2d 1539, 1542 (Fed. Cir. 1988).


                                                  10
[Rule 60(b)(6)] is not for the purpose of relieving a party from free, calculated, and deliberate
choices he has made”).

         In fact, even the Ninth Circuit, which took the most expansive view of the availability of
relief under Rule 60(b)(6) in these circumstances in Community Dental Services, has since made
it clear that its view was predicated on the disfavored status of default judgments. Thus, in
Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006), the Ninth Circuit
declined to reverse a district court’s denial of a Rule 60(b)(6) motion where, as a result of the
gross negligence and misconduct of an attorney, a plaintiff accepted a Rule 68 offer of judgment.
It explained that its decision in Community Dental Services “was explicitly premised upon the
default judgment context of that case.” 452 F.3d at 1103 (citing Cmty. Dental Servs., 282 F.3d
at 1169). The court observed that “Rule 68 judgments and default judgments are quite different”
and that “[d]efault judgments are disfavored and appropriate only in unique circumstances.” Id.

        It thus appears that there is no support in the courts of appeals for the petitioner’s
argument in this case that—as a matter of law—the Special Master was required to grant her
motion for relief under Rule 60(b)(6) because her decision to voluntarily dismiss her petition was
based on her attorney’s grossly negligent assessment of her chances of obtaining better relief in
an alternate forum. In that regard, the Court finds unavailing petitioner’s heavy reliance upon
the Federal Circuit’s decision in Herring v. Merit Systems Protection Board, 778 F.3d 1011 (Fed.
Cir. 2015), which petitioner argues established a “rule that the gross negligence of an attorney
can constitute ‘extraordinary circumstances’ justifying relief under Rule 60(b)(6).” Mot. for
Review at 7.

         The issue in Herring was whether the Merit Systems Protection Board (“MSPB”) erred
in dismissing the petitioner’s appeal as untimely filed. Under the Board’s regulations, if a party
does not file an appeal “within the time set by statute, regulation, or order of a judge, it will be
dismissed as untimely filed unless a good reason for the delay is shown.” 5 C.F.R. § 1201.22(c)
(2012). In Herring, the petitioner’s appeal was filed ten days late because her attorney’s office
“negligently failed to transmit to her attorney” the documents she submitted “while confirming
to Ms. Herring that the necessary documents and payment had been received.” 778 F.3d at 1013.
The court of appeals reversed the MSPB’s decision that Ms. Herring had not shown “good
cause” for the untimely filing. Id. at 1017. It did so based upon its conclusion that the Board
had failed to consider factors it had held in other cases were significant to the determination of
whether good cause exists. Id.

        Petitioner overreads Herring to the extent that she argues that the court of appeals in that
case established any rule regarding whether and under what circumstances an attorney’s gross
negligence may properly serve as the basis for granting a request for relief under 60(b). No such
rule could have been established in Herring because Herring was not a Rule 60(b) case. In fact,
the “good cause” standard in 5 C.F.R. § 1201.22 is more liberal than the “extraordinary
circumstances” standard for granting relief under Rule 60(b)(6) and is derived from an
independent body of case law.7 In addition, the Federal Circuit’s citation of Primbs occurred in


7
 For example, good cause under 5 C.F.R. § 1201.22 may be established by showing “that the
delay was excusable under the circumstances and that the appellant exercised due diligence in
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the narrow context of its discussion of one of the criteria set forth in the case law for determining
whether good cause exists under 5 C.F.R. § 1201.22—prejudice to the agency which would
result from waiver of the time limit.8 Herring, 778 F.3d at 1018.

        In any event, even assuming that the citation to Primbs had signaled the court of appeals’
endorsement of the Claims Court’s Rule 60(b)(6) analysis in that case, it would provide little
assistance to the petitioner. That is because in Primbs, like Community Dental Services and the
other court of appeals decisions upon which petitioner relies, counsel’s actions were so egregious
as to constitute a virtual abandonment of the plaintiff, and the judgment sought to be set aside
was one which was imposed on an involuntary basis.

         In Primbs, the Claims Court had dismissed the plaintiff’s complaint for failure to
prosecute after plaintiff’s counsel failed to respond to the government’s motion for summary
judgment or to the court’s order to show cause why the complaint should not be dismissed for
failure to prosecute. 4 Cl. Ct. at 366. The plaintiff, acting pro se, filed a request for relief from
the dismissal, based on the fact that his attorney “not only failed to inform him of the court’s
orders to show cause and to dismiss, but actively deceived him about the status and ongoing
prosecution of the case.” Id. at 367. In fact, “[p]laintiff learned of these [orders] only after
[counsel’s] nervous breakdown,” which had “prompted members of [his] firm . . . to review his
case files, and upon discovering the dismissal, members of the firm contacted Mr. Primbs.” Id.

          The court granted the plaintiff relief under Rule 60(b)(6), reasoning that “the interests of
justice would best be served by vacating the judgment of dismissal and permitting this case to
proceed for a judgment on the merits.” Id. at 368. First, the court observed that “strong policies
. . . [favor] resolution of disputes on their merits.” Id. (quoting Jackson v. Beech, 636 F.2d 831,
835 (D.C. Cir. 1980)). Furthermore, “when the judgment attacked is a default judgment, ‘Rule
60(b) will be liberally construed in favor of trial on the full merits of the case.’” Id. at 368-69
(quoting Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 403 (5th Cir. 1981). The court rejected the
defendant’s argument that the Supreme Court’s decision in Link forecloses relief under Rule


attempting to meet the filing deadline.” Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374, 1377
(Fed. Cir. 2003); see also Williamson v. Merit Sys. Prot. Bd., 334 F.3d 1058, 1064 (Fed. Cir.
2003) (stating that “if the employee gives a reasonable excuse for the delay, such excuse should
be accepted by the presiding official, absent a showing of substantial prejudice to the agency
caused by the delay in filing”). Further, unlike Rule 60(b), under 5 C.F.R. § 1201.22, an
attorney’s mere negligence (as opposed to gross negligence) may be sufficient to justify a finding
of good cause, at least where the petitioner exercised ordinary prudence and other mitigating
factors are present. Herring, 778 F.3d at 1017.
8
  The court of appeals noted Primbs’s holding that “a serious . . . dereliction by an attorney, when
unaccompanied by a similar default by the client, may furnish a basis for relief [from a
dismissal] under Rule 60(b)(6),” id. at 1018 (citing Primbs, 4 Cl. Ct. at 370), and that “[t]hat is
the more so where, as apparently here, little if any prejudice has befallen the other party to the
litigation.” Id. It then observed that in Herring, “[t]he MSPB has not asserted the ten-day delay
resulted in any prejudice.” Id. (emphasis in original).


                                                  12
60(b)(6), noting that the Supreme Court’s holding in Link that “‘each party is deemed bound by
the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be
charged upon the attorney’ . . . . concerned the trial court’s discretion to dismiss a case for failure
to prosecute, and not the wholly separate issue of its power to vacate such a judgment.” 4 Cl. Ct.
at 369 (quoting Link, 370 U.S. at 634). Moreover, it observed that counsel in Primbs “was not
merely negligent in his handling of plaintiff’s suit. He actively misled and lulled his client into
believing this case was proceeding smoothly.” Id. at 369-70. The court reasoned that “[t]he
usual understanding of the attorney-client agency relationship . . . should not bar relief under
Rule 60(b) when the evidence is clear that the attorney and his client were not acting as one. The
agency analysis is particularly inappropriate when the plaintiff has proven that his diligent efforts
to prosecute the suit were, without his knowledge, thwarted by his attorney’s deceptions and
negligence.” Id. at 370.

         The court’s ruling in Primbs, like the decisions of the courts of appeals in the cases cited
above, are predicated on the notion that an attorney’s gross negligence should not be imputed to
the client where the attorney has affirmatively misled the client, and/or effectively abandoned the
client so that the attorney is no longer acting as the client’s agent. Cf. Maples, 132 S. Ct. at 923
(noting the “essential difference between a claim of attorney error, however egregious, and a
claim that an attorney had essentially abandoned his client” (citing Holland v. Florida, 560 U.S.
631, 659 (2010) (Alito, J., concurring))). It also recognizes, as did the other courts of appeals,
that a liberal construction of Rule 60(b) is appropriate in cases where the policy favoring
resolution of cases on their merits is at stake—i.e. in cases where the judgment from which relief
is sought is either a default judgment or a dismissal for failure to prosecute. Primbs, 4 Cl. Ct. at
367.

       In short, given the existing case law, the Court cannot say that the Special Master’s
conclusion that this case did not present extraordinary circumstances justifying relief under Rule
60(b)(6) was “clearly unreasonable, arbitrary or fanciful,” or “based on clearly erroneous
findings of fact or erroneous conclusions of law.’” Lazare Kaplan Int’l, Inc., 714 F.3d at 1293.
Therefore, the Court must, with great regret, deny the motion for review.

                                          CONCLUSION

       The motion for review is DENIED.

       IT IS SO ORDERED.

                                                        s/Elaine D. Kaplan
                                                        ELAINE D. KAPLAN
                                                        Judge, U.S. Court of Federal Claims




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