            In the United States Court of Federal Claims
                                           No. 10-669V
                                       Filed May 25, 2016 *

                                               )
    ALEX B. KENZORA,                           )
                                               )
                         Petitioner,           )       National Childhood Vaccine Injury Act of
                                               )       1986 (“Vaccine Act”), 42 U.S.C. §
    v.                                         )       300aa–1 to –34 (2012); Motion for Relief
                                               )       from Judgment, RCFC 60(b); Vaccine
    SECRETARY OF HEALTH AND                    )       Rule 36.
    HUMAN SERVICES,                            )
                                               )
                         Respondent.           )
                                               )


         Jeffrey A. Golvash, Brennan, Robins & Daley, P.C., Pittsburg, PA, for petitioner.

       Amy P. Kokot, Trial Attorney; Voris E. Johnson, Jr., Assistant Director; Vincent J.
Matanoski, Deputy Director; Rupa Bhattacharyya, Director; Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Torts Branch, Civil Division, United States Department of Justice,
Washington, DC, for respondent.

                          MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge

I.       INTRODUCTION

         Petitioner, Alex B. Kenzora, seeks review of a September 25, 2015 decision of the special
master denying his motion for relief from judgment, pursuant to Vaccine Rule 36. Because the
record before the Court shows that the special master’s decision was not arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law, the Court DENIES petitioner’s
motion for review and SUSTAINS the decision of the special master.




*
 Pursuant to Rule 18(b) of Appendix B of the Rules of the United States Court of Federal
Claims, this Memorandum Opinion and Order was filed under seal on March 17, 2016.
II.     FACTUAL AND PROCEDURAL BACKGROUND

                Factual Background 1

        Petitioner, Alex B. Kenzora, seeks review of the special master’s September 25, 2015
decision denying his motion for relief from the judgment entered in his vaccine injury case,
pursuant to Vaccine Rule 36. See generally Pet. Mem. for Rev. In his motion for review,
petitioner alleges that:

        (1) The Special Master committed an error of law by concluding that the
            judgment at issue was not “executory” and thus not a judgment with
            “prospective application” for purposes of relief under Rule 60(b)(5);

        (2) The Special Master committed an error of law by narrowly construing the
            equitable power of the court to grant relief from judgment under Rule
            60(b)(6); and

        (3) The Special Master committed an error of law by concluding that judgment
            entered pursuant to a settlement stipulation, in essence a consent judgment or
            consent decree, may not be set aside or modified, in whole or in part, under
            Rule 60(b).

Pet. Mem. for Rev. at 4. As relief, petitioner requests that the Court set aside the special
master’s September 25, 2015 decision and remand this matter to the Office of Special Masters.
Id. at 5.

        The relevant factual background for this matter is set forth in detail in the special
master’s September 25, 2015 decision (“Special Master’s Decision”). Kenzora v. Sec’y of
Health & Human Servs., No. 10-669V, Doc. 53, 2015 WL 6121582 (Fed. Cl. Spec. Mstr.
Sept. 25, 2015). On October 4, 2010, petitioner filed a petition pursuant to the National Vaccine

1
  The facts recounted in this Memorandum Opinion and Order are taken from the special master’s
September 25, 2015 decision denying petitioner’s motion for relief from judgment in Kenzora v. Sec’y of
Health & Human Servs., No. 10-669V, Doc. 53, 2015 WL 6121582 (Fed. Cl. Spec. Mstr. Sept. 25, 2015)
(“Special Master’s Decision at __”); petitioner’s motion for review of the Special Master’s Decision and
memorandum in support thereof (“Pet. Mem. for Rev. at ___”); the Secretary’s response to petitioner’s
motion for review (“Resp. Br. at ___”); the stipulation entered into by petitioner and the Secretary on
April 30, 2013 (“Stipulation at ___”); petitioner’s March 13, 2015 motion for relief from judgment and
memorandum in support thereof (“Pet. Mem. for Relief at ___”); petitioner’s affidavit dated April 27,
2015, filed in support of petitioner’s motion for relief from judgment (“Pet. Aff’d. at ___”); the special
master’s decision dated April 30, 2013, adopting the Stipulation (“April 2013 Decision at ___”); and the
Court’s May 6, 2013 judgment resolving petitioner’s vaccine injury claims (“May 2013 Judgment”).
Except where otherwise noted, the facts recited here are undisputed.
Injury Compensation Program alleging that he suffered transverse myelitis as the result of an
influenza vaccination administered to him on October 19, 2007. Id. at 1.

       On April 30, 2013, petitioner and the Secretary of Health and Human Services (the
“Secretary”) filed a stipulation agreement that awarded petitioner certain compensation in the
proceedings before the special master (the “Stipulation”). Id. at 1-2. On that same day, the
special master issued a decision which incorporated the terms of the Stipulation (the “April 2013
Decision”). Id. On May 6, 2013, the Court entered judgment in the matter awarding petitioner
certain compensation pursuant to the special master’s April 2013 Decision (the “May 2013
Judgment”). Id.; Kenzora v. Sec'y of Health & Human Servs., No. 10-0669V, Judgment (Fed. Cl.
May 6, 2013). Petitioner accepted the May 2013 Judgment on May 7, 2013. Special Master’s
Decision at 2.

       The May 2013 Judgment provides that:

       Pursuant to the special master’s decision, filed April 30, 2013, adopting the
       parties’ stipulation, filed April 30, 2013, it was held that petitioner is entitled to an
       award.

       IT IS ORDERED AND ADJUDGED this date, pursuant to Vaccine Rule 11(a),
       that petitioner is awarded compensation as follows:

           •     a lump sum payment of $104,737.34, in the form of a check payable to
                 petitioner, which represents compensation for all damages that would be
                 available under 42 U.S.C. § 300aa-15(a), except as set forth in paragraphs
                 8.b, 8.c, and 8.d of the parties’ stipulation;

           •     a lump sum payment of $269,388.32, which represents reimbursement of a
                 State of West Virginia Medical lien, in the form of a check payable jointly
                 to petitioner and DHHR/HMS Tort Recovery; P.O. Box 11073;
                 Charleston, WV 25339; Case Number 125148; Attn: Ms. Tiffany Stewart;

           •     an amount sufficient to purchase the annuity contract described in
                 paragraph 10 of the parties’ stipulation, paid to the life insurance company
                 from which the annuity will be purchased;

           •     a lump sum of $31,890.97, in the form of a check payable jointly to
                 petitioner and petitioner’s counsel of record for petitioner’s attorney fees
                 and costs; and

           •     a lump sum of $350.00, in the form of a check payable to petitioner for his
                 personal litigation costs.

                                                   3
May 2013 Judgment. Pursuant to the Stipulation, the Secretary was obligated to purchase an
annuity contract from a life insurance company to provide for the following annuity payments
called for in the May 2013 Judgment:

        Beginning as soon as practicable after the date of judgment, $6,000.00 per month
        for five (5) years life contingent, increasing at three percent (3%) compounded
        annually from the date payments begin.

Stipulation at ¶ 10. The Stipulation further provides that, once the Secretary purchased the
annuity contract, the Secretary and the United States “are released from any and all obligations
with respect to future annuity payments.” Id. at ¶ 11. In addition, the Stipulation states that
“[t]here is absolutely no agreement on the part of the parties hereto to make any payment or to do
any act or thing other than is herein expressly stated and clearly agreed to.” Id. at ¶ 18. Lastly,
the Stipulation further states that, should the special master fail to issue a decision “in complete
conformity with the terms of this Stipulation, . . . the parties’ settlement and this Stipulation shall
be voidable at the sole discretion of either party.” Id. at ¶ 17.

        The Secretary purchased an annuity contract in accordance with the terms of the
Stipulation. Special Master Decision at 2. Petitioner has been receiving annuity payments since
July 2013. Pet. Aff’d. at ¶ 8.

        Following entry of the May 2013 Judgment, petitioner became concerned about whether
the amount of his monthly annuity payments would cover his nursing facility costs. See
generally Pet. Mem. for Relief. On March 13, 2015, petitioner filed a motion for relief from the
May 2013 Judgment, requesting that the special master set aside, or alter, the Judgment pursuant
to RCFC 60(b) and Vaccine Rule 36. Id. 2 In his motion for relief from judgment, petitioner
argued that the monthly annuity payments provided for under the May 2013 Judgment were
insufficient to cover his costs, because his monthly nursing facility charge was higher than he
expected at the time of settlement. Id. at 2. 3 And so, petitioner requested that the special master


2
 Petitioner initially sought relief from judgment under RCFC 60(b)(6), but later amended his motion to
also seek relief under RCFC 60(b)(6). See generally Pet. Mem. for Relief.
3
 Specifically, petitioner argues that he and the Secretary estimated that his monthly nursing facility
charges would be $5,850.00. Pet. Mem. for Relief at 8. But, his monthly nursing facility charges are
actually are between $6,500.00 and $8,200.00. Id. Petitioner receives $6,180.00 per month in accordance
with the May 2013 Judgment. Id.

                                                   4
liquidate or modify the annuity payment called for under the May 2013 Judgment, so that
petitioner could qualify for Medicaid to help cover the additional monthly nursing facility costs.
Id. at 2-3.

                The Special Master’s Decision

        On September 25, 2015, the special master issued a decision denying petitioner’s motion
for relief from judgment. See generally Special Master’s Decision. In the decision, the special
master concluded that the facts presented in this case do not meet the criteria for relief under
RCFC 60(b) and, thus, do not warrant relief from the May 2013 Judgment. Id. at 1.

        First, with respect to petitioner’s request for relief from judgment under RCFC 60(b)(5),
the special master determined that the fact that petitioner’s annuity payments do not fully cover
his nursing facility costs is not a circumstance that makes the prospective application of the
May 2013 Judgment no longer equitable within the meaning of RCFC 60(b)(5). Id. at 4. In this
regard, the special master found that RCFC 60(b)(5) has not been held to apply to
judgments−like the May 2013 Judgment−that involve money damages and that the rule should
primarily be read within the context of injunctive relief. Id. And so, the special master
concluded that the monthly annuity payments to petitioner are executory, in the sense that these
payments are to be made over the course of five years. Id. But, the May 2013 Judgment
itself−which only obligates the Secretary to purchase the annuity contract to provide for these
payments−is not executory and has no prospective application within the meaning of RCFC
60(b)(5). Id.

        The special master also determined that petitioner had not shown changed circumstances
that would warrant relief under RCFC 60(b)(5). Id. at 4-5. In this regard, the special master
determined that, the fact that petitioner’s actual cost of care is higher than anticipated is not a
changed circumstance that warrants relief under RCFC 60(b)(5). Id. Specifically, the special
master observed that, prior to entering into the Stipulation, petitioner was advised about the cost
of his nursing facility care and petitioner had been informed that “[a]ll ancillary services as well
as pharmacy will be billed separately for private pay residents.” Id. at 5 (emphasis in original).
The special master also observed that petitioner acknowledged during the proceedings before the
special master that he anticipated that this vaccine injury settlement would render him ineligible
for Medicaid at the time of settlement. Id. And so, the special master concluded that “[i]t
                                                   5
appears that the ‘changed circumstances’ petitioner alleges are actually the result of an erroneous
belief held by petitioner at the time he entered into the settlement—that the quoted nursing
facility costs would remain fixed in the future.” Id. (emphasis in original). 4

        The special master also considered and rejected petitioner’s argument that the Tenth
Circuit’s decision in Zimmerman v. Quinn supports his claim for relief under RCFC 60(b)(5). Id.
at 6; Zimmerman v. Quinn, 744 F.2d 81, 81 (10th Cir. 1984). Specifically, the special master
determined that the circumstances presnted in Zimmerman did not apply in petitioner’s case
because, unlike in Zimmerman, the alleged changed circumstance in this case took place after the
parties had fully complied with their obligations under the terms of the May 2013 Judgment.
Special Master’s Decision at 5-6. And so, the special master concluded that no changed
circumstances exists that would warrant relief under RCFC 60(b)(5). Id.

        The special master also determined that relief from judgment was not warranted under
the catchall provision set forth in RCFC 60(b)(6). Id. at 6. Specifically, the special master
determined that the fact that petitioner’s annuity payments do not fully cover all of his costs is
not a basis upon which to set aside the May 2013 Judgment under RCFC 60(b)(6). Id. In this
regard, the special master observed that RCFC 60(b)(6) “must be construed narrowly in order to
preserve the finality of judgments.” Id. Relying upon this Court’s decision in Kennedy v. Sec’y
of Health & Human Servs., the special master further observed that relief from judgment under
RCFC 60(b)(6) “must be justified by a showing of ‘exceptional circumstances,’ where a ‘grave
miscarriage of justice’ would result, and the ‘substantial rights’ of the party would be harmed if
relief is not granted.” Id. (citing Kennedy v. Sec’y of Health & Human Servs., 99 Fed. Cl. 535,
540, 548, aff’d, 485 F. App’x 435 (Fed. Cir. 2012)). The special master also determined that
RCFC 60(b)(6) does not relieve a party from a “free, calculated, and deliberate choice.” Id.
(citing Kennedy, 99 Fed. Cl. at 548 (quoting Ackermann v. United States, 340 U.S. 193 at 198
(1950))). In light of these standards, the special master concluded that no such exceptional
circumstances existed in this case because, petitioner was represented by counsel at the time of

4
 The special master also observed that petitioner’s request for relief might have been more appropriately
brought under RCFC 60(b)(1), which provides relief for a “mistake.” Special Master’s Decision at 5.
But, she further observed that such a request would be untimely in this case, because a party must move
pursuant to RCFC 60(b)(1) within one year of judgment and more than a year had elapsed since the May
2013 Judgment. Id.


                                                    6
settlement, the May 2013 Judgment “is a significant award to petitioner that covers the majority
of his care, and based on the procedural history it appears the settlement was well negotiated.”
Special Master’s Decision at 6.

       Lastly, the special master determined that granting petitioner’s motion for relief from
judgment would not result in the relief that petitioner seeks in this matter. Id. at 7. Specifically
the special master determined that she did not have the authority to liquidate or modify the
annuity provided for in the May 2013 Judgment, or to set aside or modify that judgment under
the Vaccine Act or the terms of the Stipulation. Id. With respect to the authority granted under
the Vaccine Act, the special master determined that the Vaccine Act does not allow for periodic
adjustments of awards where the award later proves insufficient to meet actual expenses. Id.
And so, she concluded that petitioner’s request to modify the May 2013 Judgment, based upon
an increase in the cost of his nursing facility care, would not be permissible under the Vaccine
Act. Id.

       In addition, the special master determined that the Stipulation also precluded her from
modifying or liquidating the amount of the annuity to be paid to petitioner. Id. Specifically, the
special master observed that the Stipulation provides that “[t]here is absolutely no agreement on
the part of the parties hereto to make any payment or to do any act or thing other than is herein
expressly stated and clearly agreed to.” Id. (quoting Stipulation at ¶ 18). She also observed that
the Stipulation provides that, should the special master fail to issue a decision “in complete
conformity with the terms of this Stipulation, . . . the parties’ settlement and this Stipulation shall
be voidable at the sole discretion of either party.” Special Master’s Decision at 7 (quoting
Stipulation at ¶ 17). And so, the special master concluded that the May 2013 Judgment had been
entered in accordance with the terms of the Stipulation and that she did not have the authority to
unilaterally change the terms of that agreement. Special Master’s Decision at 8.

               Procedural History

       Petitioner filed a motion for review of the Special Master’s Decision and a memorandum
in support thereof on October 22, 2015. See generally Pet. Mem. for Rev. On November 23,
2015, the government filed a response to petitioner’s motion for review. See generally Resp. Br.




                                                   7
       Prior to filing this action, petitioner filed a petition pursuant to the National Vaccine
Injury Compensation Program alleging that he suffered transverse myelitis as the result of an
influenza vaccination on October 4, 2010. Special Master’s Decision at 1. On April 30, 2013,
petitioner and the Secretary filed the Stipulation awarding petitioner certain compensation. Id. at
2. On April 30, 2013, the special master issued a decision which incorporated the terms of the
Stipulation. Id.; see generally April 2013 Decision. On May 6, 2013, the Court entered
judgment awarding petitioner certain compensation pursuant to the special master’s April 2013
Decision. Special Master’s Decision at 1; see generally May 2013 Judgment. Petitioner
accepted the May 2013 Judgment on May 7, 2013. Special Master’s Decision at 2.

       On March 13, 2015, petitioner filed a motion for relief from the May 2013 Judgment,
pursuant to RCFC 60(b) and Vaccine Rule 36. Id. On September 25, 2015, the special master
issued a decision denying petitioner’s motion for relief from judgment, resulting in the motion
for review of the Special Master’s Decision presently pending before the Court. See generally
Special Master’s Decision; Pet. Mem. for Rev. That matter having been fully briefed, the Court
addresses the pending motion for review.

III.   STANDARDS FOR DECISION

               The Vaccine Act

       The United States Court of Federal Claims has jurisdiction to review the record of the
proceedings before a special master and, upon such review, may:

       (A) uphold the findings of fact and conclusions of law of the special master and
       sustain the special master’s decision;

       (B) set aside any findings of fact or conclusions of law of the special master found
       to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
       with law and issue its own findings of fact and conclusions of law; or

       (C) remand the petition to the special master for further action in accordance with
       the court’s direction.

42 U.S.C. § 300aa–12(e)(2).

       A special master’s discretionary rulings are reviewed for “abuse of discretion.” Lampe v.
Sec’y of Health & Human Servs., 219 F.3d 1357, 1369 (Fed. Cir. 2000). An abuse of discretion


                                                 8
exists when “the lower court’s decision was based on an erroneous conclusion of law or on a
clearly erroneous finding of fact.” Patton v. HHS, 25 F.3d 1021, 1029 (Fed. Cir. 1994) (citation
omitted). And so, a special master’s decision to grant or deny relief pursuant to RCFC 60(b) is
reviewed “under an APA-like standard,” meaning that the decision should be set “aside only if it
is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” Vessels v. Sec’y of Dep’t of Health & Human Servs., 65 Fed. Cl. 563, 565 (2005) (internal
citations omitted).

               Vaccine Rule 36

       Pursuant to Vaccine Rule 36(b), a party may seek review of a decision by a special
master to deny a motion for relief from judgment pursuant to RCFC 60. Vaccine Rule 36(b).
The Vaccine Rule provides, in relevant part, that:

       (1) In General. If a motion pursuant to RCFC 59 or 60 is referred to the special
       master pursuant to subdivision (a) of this rule, the special master must file a
       written ruling on the motion.

       (2) Effect. The ruling of the special master will be the final ruling of the court on
       the motion, unless a party files with the clerk a motion for review of that ruling.

       (3) Motion for Review. A party may file a motion for review of the special
       master’s ruling, accompanied by a memorandum of objections to the ruling,
       within 30 days after the date of the ruling. See Vaccine Rules 23 and 24. . . .

       (7) Reviewing the Ruling of the Special Master. After reviewing the ruling of the
       special master, the assigned judge may set aside the ruling only if it is found to be
       arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
       law. See Vaccine Rule 27.

Vaccine Rule 36(b).

               RCFC 60(b)

       RCFC 60 addresses relief from a judgment, or order of the Court. RCFC 60. In this
regard, RCFC 60(b) provides, in relevant part, that the Court may relieve a party from a “final
judgment, order, or proceeding” because:

       (5) . . . applying it prospectively is no longer equitable; or

       (6) any other reason that justifies relief.

                                                     9
RCFC 60(b)(5)-(6). 5

        This Court has held that “[a] motion for relief from judgment is one for extraordinary
relief entrusted to the discretion of the court.” Matos by Rivera, 30 Fed. Cl. at 225 (internal
quotations omitted). The Court has also held that the party seeking relief from judgment bears
the burden of establishing that exceptional circumstances warrant such extraordinary relief.
Matos, 30 Fed. Cl. at 226.

        The United States Court of Appeal for the Federal Circuit has liberally construed the
exception to finality of judgment under RCFC 60(b) for the purpose of doing “substantial
justice.” Patton, 25 F.3d at 1030. But, the United States Supreme Court has noted that “relief
from a final judgment . . . [is allowed only] under a limited set of circumstances.” Gonzales v.
Crosby, 545 U.S. 524, 529 (2005); See also Kennedy, 99 Fed. Cl. at 548 (finding that ineffective
assistance of petitioner’s parents when representing him was an extraordinary circumstance);
D.B. v. Sec'y of Health & Human Servs., 2015 WL 7271767, at *6 (Fed. Cl. Nov. 18, 2015)
(finding that the indictment of petitioner’s expert doctor was not an extraordinary circumstance).
In determining whether circumstances justify granting relief from judgment pursuant to RCFC
60(b), the Court is granted discretion to weigh equitable considerations and to find “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)
(quotations omitted). The Court should not grant relief under RCFC 60(b) “if substantial rights
of the party have not been harmed by the judgment.” Dynacs Eng’g Co. v. United States, 48
Fed. Cl. 240, 242 (2000). And so, RCFC 60(b) should not be used “simply to relitigate a case.”
D.B., 2015 WL 7271767, at *4-5 (quoting Wagstaff v. United States, 595 Fed. Appx. 975, 978
(Fed. Cir. 2014)).

        RCFC 60(b)(5) provides, in relevant part, that a party may be relieved from final
judgment if “applying it prospectively is no longer equitable.” RCFC 60(b)(5). This Court has
held that RCFC 60(b)(5) applies to judgments that are “executory” in nature, or those that entail


5
 RCFC 60(b) is identical to Fed. R. Civ. P. 60(b). Compare RCFC 60(b), with Fed. R. Civ. P. 60(b).
And so, cases interpreting the meaning and intent of Fed. R. Civ. P. 60 are applicable in analyzing RCFC
60(b). D.B. v. Sec’y of Health & Human Servs., No. 09-221V, 2015 WL 7271767, at *4.


                                                   10
the Court supervising “changing conduct or conditions.” Lemire v. Sec’y of Health & Human
Servs., 2008 WL 2490654, at *7 (Fed. Cl. June 3, 2008) (internal citations omitted); Smith v.
United States, 495 F. App’x 44, 50 (Fed. Cir. 2012)). In this regard, the Court has recognized
that injunctive relief is the classic example of a judgment with prospective application. Lemire,
2008 WL 2490654 at *7. In addition, the Court has held that RCFC 60(b)(5) does not generally
encompass judgments for money damages, because such judgments have no prospective effect.
Id. at 8. The United States Court of Appeals for the First Circuit has also held that a judgment is
executory, and therefore has a prospective application under RCFC 60(b)(5), when the judgment
does not resolve all of the parties’ rights and liabilities, leaving “some of those rights and
liabilities to be determined on the basis of future events.” United States v. Kayser-Roth Corp.,
103 F. Supp. 2d 74, 79 (D.R.I. 2000), aff’d, 272 F.3d 89 (1st Cir. 2001).

       RCFC 60(b)(6) provides that a party may be relieved from final judgment for “any other
reason that justifies relief.” RCFC 60(b)(6). But, relief pursuant to RCFC 60(b)(6) may not be
premised upon one of the grounds for relief set forth in the other parts of RCFC 60(b). Kennedy,
99 Fed. Cl. at 547 (internal citation omitted). This Court has recognized RCFC 60(b)(6) to be a
“grand reservoir of equitable power to do justice in a particular case,” although not a
“bottomless” one. G.G.M. v. Sec’y of Health & Human Servs., 122 Fed. Cl. 199, 204 (2015)
(quoting Lazare Kaplan Int'l, Inc. v. Photoscribe Techs., Inc., 714 F.3d 1289, 1295 (Fed. Cir.
2013)). And so, relief pursuant to RCFC 60(b)(6) may be granted “only for exceptional or
extraordinary circumstances.” Louisville Bedding Co. v. Pillowtex Corp., 455 F.3d 1377, 1380
(Fed. Cir. 2006) (internal citations omitted); see also Perry v. United States, 558 Fed. Appx.
1004, 1006 (Fed. Cir. 2014); Kennedy, 99 Fed. Cl. at 548 (a strict interpretation of the broad text
of RCFC 60(b)(6) is necessary to preserve the “finality of judgments” and RCFC 60(b)(6) cannot
serve as the grounds to relieve a party from a “free, calculated, and deliberate choice”);
Greenbrier v. United States, 75 Fed. Cl. 637, 641 (2007) (litigation must come to an end and “the
impact of tactical litigation decisions that prove to be unsuccessful” is not included among the
“exceptional or extraordinary circumstances”). Such exceptional or extraordinary circumstances
exist when, absent relief, a “grave miscarriage of justice” would result, and the “substantial
rights” of the party would be harmed. Kennedy, 99 Fed. Cl. at 540, 548; see also Dynacs Eng’g
Co., 48 Fed. Cl. at 242.



                                                  11
IV.     LEGAL ANALYSIS

        In his motion for review, petitioner enumerates three objections to the special master’s
decision denying his motion for relief from the May 2013 Judgment. See generally Pet. Mem.
for Rev. First, petitioner argues that the special master committed an error of law by concluding
that the May 2013 Judgment was not executory and, thus, not a judgment with prospective
application under RCFC 60(b)(5). Id. at 7. Second, petitioner argues that the special master
committed an error of law in narrowly construing the equitable power to grant him relief from
judgment under RCFC 60(b)(6). Id. at 14. Lastly, petitioner argues that the special master
committed an error of law by concluding that she could not modify the May 2013 Judgment as
petitioner requests in this matter. Id. at 17.

        The Secretary counters that the Court should deny petitioner’s motion for review and
sustain the decision of the special master because, (1) the special master correctly determined
that petitioner is not entitled to relief from judgment pursuant to RCFC 60(b); (2) the Vaccine
Act and the Stipulation preclude the special master from modifying the May 2013 Judgment; and
(3) the relief petitioner seeks cannot be achieved under RCFC 60(b). Resp. Br. at 8-16. For the
reasons discussed below, the special master’s decision denying petitioner’s motion for relief
from judgment was reasonable and in accordance with law. And so, the Court denies petitioner’s
motion for review and sustains the decision of the special master.

                The Special Master Reasonably Determined That Petitioner
                Is Not Entitled To Relief From Judgment Under RCFC 60(b)(5)

                1.      The Special Master Did Not Abuse Her Discretion By Finding
                        That The May 2013 Judgment Does Not Have Prospective Application

        As an initial matter, the special master’s decision to deny petitioner’s motion for relief
from judgment because the May 2013 Judgment did not have prospective application was
reasonable and in accordance with law. As discussed above, under RCFC 60(b)(5), the Court
may set aside a judgment if applying the judgment prospectively would no longer be equitable.
RCFC 60(b)(5). In this regard, this Court has held that “the term ‘prospective application’ is a
term of art with specific meaning: prospective application means a continuing effect of
judgment that is ‘executory’ or involves ‘the supervision of changing conduct or conditions.’”
Lemire, 2008 WL 2490654, at *7 (internal citations omitted); see also Smith, 495 F. App’x at 50.


                                                 12
And so, this Court has held that the prospective application clause of RCFC 60(b)(5) is designed
primarily to incorporate the inherent power of a court of equity to modify an injunction in
adaption to changed circumstances. Lemire, 2008 WL 2490654 at *7.

        In her decision denying petitioner’s motion for relief from judgment, the special master
found that relief from judgment under RCFC 60(b)(5) was not available to petitioner here,
because all of the obligations in the May 2013 Judgment had been fulfilled. Special Master’s
Decision at 4. In this regard, the special master acknowledged that the monthly annuity
payments to petitioner are executory in nature because these payments are received over the
course of several years. Id. But, she determined that the May 2013 Judgment itself is not
executory, because the judgment only required that the Secretary purchased the annuity contract
to provide for the payment and the Secretary has completed that purchase using finite funds and
a life insurance company had been providing monthly annuity payments to petitioner. Id.

        In addition, the special master noted that this Court held in Lemire v. Sec’y of Health &
Human Servs. that the very nature of a Vaccine Act petition is an action at law, and that such an
action for monetary damages is “incongruent to a basic understanding of prospective relief.” Id.
(citing Lemire, 2008 WL 2490654 at *8; RCFC 60(b)(5)). And so, the special master concluded
that petitioner’s receipt of annuity payments over several years pursuant to a monetary judgment
is not the type of prospective application that RCFC 60(b)(5) contemplates may be rendered
inequitable due to changed circumstances. Special Master’s Decision at 4.

        The special master’s decision is reasonable and in accordance with law because there is
nothing prospective about the May 2013 Judgment. See generally May 2013 Judgment; see also
Lemire, 2008 WL 2490654 at *7-8. A plain reading of the May 2013 Judgment makes clear that
the judgment directed the Secretary to purchase an annuity contract to provide monthly annuity
payments to petitioner. See generally May 2013 Judgment. The May 2013 Judgment states, in
relevant part, that:

        IT IS ORDERED AND ADJUDGED this date, pursuant to Vaccine Rule 11(a),
        that petitioner is awarded compensation as follows: . . .

            •   an amount sufficient to purchase the annuity contract described in
                paragraph 10 of the parties’ stipulation, paid to the life insurance company
                from which the annuity will be purchased . . .

                                                 13
Id. It is without dispute that the Secretary has purchased the annuity contract called for by the
May 2013 Judgment. Pl. Mem. for Rev. at 3; Resp. Br. at 4. It is also without dispute that
petitioner received his first annuity payment in July 2013, and that these monthly payments
continue pursuant to the terms of the Stipulation. Pl. Mem. for Rev. at 3; see also Pet. Aff’d. at ¶
8. Given this, the May 2013 Judgment does not place a continuing duty upon the Secretary to
perform any obligation and the judgment is not contingent on future circumstances or events.
Lemire, 2008 WL 2490654 at *8. And so, the special master reasonably concluded that the
May 2013 Judgment was not executory in nature and, thus, did not have a prospective
application within the meaning of RCFC 60(b)(5). Special Master’s Decision at 4-6.

        The special master also correctly construed this Court’s decision in Lemire v. Sec’y of
Health & Human Servs. to support her conclusion. As the Court held in Lemire, petitioner’s
Vaccine Act petition is an action at law, not at equity. Lemire, 2008 WL 2490654, at *8. As
such, the monetary compensation that petitioner seeks here is simply “incongruent to a basic
understanding of prospective relief.” Id. 6 And so, the special master appropriately concluded
that petitioner is not entitled to relief under the prospective application clause of RCFC 60(b)(5).
Special Master’s Decision at 4-6.

                2.       The Special Master Did Not Abuse Her Discretion In
                         Finding No Changed Circumstances That Warrant Relief

        Similarly, the special master reasonably determined that petitioner failed to show
changed circumstances that warrant relief under RCFC 60(b)(5). In this matter, petitioner argues
that changed circumstances warranting relief exists because, “an unforeseen and unanticipated
increase in [petitioner’s] monthly nursing facility charges” has resulted in his monthly annuity
payments not fully covering his costs. Pet. Mem. for Rev. at 10. Petitioner’s argument is,
however, belied by the record before the Court.



6
 In Lemire, this Court observed that “[t]he Supreme Court, in the formative case of United States v. Swift
& Co., ‘held that it was the inherent right of a court of equity to modify an injunction in adaptation to
changed circumstances which rendered the injunction an instrument of wrong;’ therefore, ‘[t]he clause of
Rule 60(b)(5) allowing for relief from the inequitable prospective application of a judgment was designed
primarily to incorporate that inherent power, and the clause should be used in light of the Swift decision.’”
Lemire, 2008 WL 2490654 at *7 (quoting Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645,
651 (1st Cir.1972)).


                                                     14
        In her decision denying petitioner’s motion for relief from judgment, the special master
found that the fact that petitioner’s actual cost of care is higher than anticipated is not a changed
circumstance that warrants relief under RCFC 60(b)(5). Special Master’s Decision at 4-5. In
this regard, the special master observed that−at the time of settlement−petitioner requested a
quote from his nursing facility regarding the cost of room and board. Id. at 5. She further
observed that petitioner was advised at the time, that these expenses were not anticipated to
increase over the next two years, but that certain services would be billed separately. Id. And
so, the special master concluded that the “changed circumstances” that petitioner alleges in this
matter are in actuality a result of petitioner’s erroneous belief−at the time of settlement−that his
nursing facility care costs would remain fixed into the future. Id.

        The special master’s decision is reasonable and in accordance with law. During the
proceedings before the special master, petitioner acknowledged that−at the time that he entered
into the Stipulation−he expected that on some months his nursing facility charges would be in
excess of the annuity and that, on those months, he would be required to pay out of pocket. Pet.
Aff’d. at ¶ 6. 7 The record before the Court also shows that petitioner and the Secretary
accounted for some increase in petitioner’s nursing facility costs by incorporating a three percent
annual increase into petitioner’s monthly annuity payments:

        The Secretary of Health and Human Services agrees to purchase an annuity
        contract . . . pursuant to which the Life Insurance Company will agree to make
        payments periodically to Alex B. Kenzora for all remaining damages that would
        be available under 42 U.S.C. § 300aa-15(a), as follows:

            a. Beginning as soon as practical after the date of judgment, $6,000 per
               month for five (5) years life contingent, increasing at three percent (3%)
               compounded annually from the date payments begin.

Stipulation at ¶ 10 (emphasis added). Given this, the record shows that petitioner did anticipate
an increase in his nursing facility costs at the time of settlement, but he underestimated the
significance of that increase over the life of the annuity payments. And so, the special master



7
 In his affidavit, petitioner states that “I understand my annuity payment of $6,000.00, increasing at 3%
compounded annually, would cover my monthly nursing charges on most months, and for those months
when the charge would be in excess, I would go out of pocket for those controlled amounts previously
assessed and realized.” Pet. Aff’d. at ¶ 6.


                                                    15
appropriately concluded that the fact that the amount of petitioner’s monthly annuity no longer
covers the entire cost of his nursing facility care is not the result of changed circumstances.
Special Master’s Decision at 4-5. Rather, this circumstance is the result of a mistaken belief,
held by petitioner at the time that he entered into the Stipulation, that his nursing facility costs
would not significantly increase during the life of the annuity. Id.; RCFC 60(b)(5); RCFC
60(b)(1).

       Petitioner, nonetheless, relied upon Zimmerman v. Quinn, a Tenth Circuit case that is not
binding upon this Court, to show that he has experienced changed circumstances that warrant
relief under RCFC 60(b)(5). 744 F.2d 81, 81 (10th Cir. 1984); Pet. Mem. for Rev. at 10-11, 13-
14. Petitioner’s reliance upon Zimmerman is misplaced.

       The judgment at issue in the Zimmerman case required that the defendant in that case
“immediately transfer” to plaintiff certain interest in oil, gas and mineral leases and required that
the defendant bear all tax liability until the transfer occurred. 744 F.2d at 81-82. The transfer in
Zimmerman was unexpectedly delayed by several months. Id. at 82. As a result, the court of
appeals held that the lengthy transfer process was a changed circumstance and that the defendant
in Zimmerman should be granted relief from the judgment. Id. at 83. The factual circumstances
in Zimmerman are simply not analogous to the present case. Here, unlike in Zimmerman, it is
without dispute that the Secretary has fully performed her obligations under the May 2013
Judgment to purchase an annuity contract from a life insurance company. Pl. Mem. for Rev. at
3; Resp. Br. at 4; Special Master Decision at 5-6. In fact, there are no outstanding obligations
under the May 2013 Judgment for either party in this case. See May 2013 Judgment. As a
result, there is no changed circumstance in this case which effects the parties’ obligations under
the judgment. Rather, petitioner no longer likes the bargain that he struck with the Secretary
regarding the amount of his monthly annuity. And so, the special master did not err in finding
that petitioner failed to establish changed circumstances as required by RCFC 60(b)(5).

               The Special Master Did Not Abuse Her Discretion In Finding
               That Petitioner Is Not Entitled To Relief Under RCFC 60(b)(6)

       The special master’s decision to deny petitioner’s motion for relief pursuant to RCFC
60(b)(6) was also reasonable and in accordance with law, because the special master properly
construed the Court’s equitable power to grant relief under RCFC 60(b)(6). Special Master’s

                                                  16
Decision at 6. In this regard, petitioner argues that the special master abused her discretion when
she “analyzed [his] request for relief from the narrow standpoint of why the circumstances
supporting the motion were not ‘exceptional’ versus the more liberal viewpoint of why such
circumstances could be considered ‘exceptional’ so as to justify relief.” Pet. Mem. for Rev. at
15. Petitioner’s argument is belied by the record evidence.

       As discussed above, RCFC 60(b)(6) permits the Court to set aside a judgment for “any
other reason that justifies relief.” RCFC 60(b)(6). The Federal Circuit has held that relief from
judgment under RCFC 60(b)(6) may be granted “only for exceptional or extraordinary
circumstances.” Louisville Bedding Co., 455 F.3d at 1380 (internal citations omitted); see also
Perry, 558 Fed. Appx. at 1006. Such exceptional or extraordinary circumstances exist when,
absent relief, a “grave miscarriage of justice” would result, and the “substantial rights” of the
party would be harmed. Kennedy, 99 Fed. Cl. 535 at 540, 548; see also Dynacs Eng’g Co., 48
Fed. Cl. at 242. And so, RCFC 60(b)(6) does not relieve a party from a “free, calculated, and
deliberate choice.” Kennedy, 99 Fed. Cl. at 548 (quoting Paul Revere Variable Annuity Ins. Co.,
248 F.3d at 1, 6).

       In this case, the special master correctly determined that relief from judgment pursuant to
RCFC 60(b)(6) is not available, because petitioner has not shown “exceptional circumstances,
where a grave miscarriage of justice would result, and the substantial rights of the party would be
harmed if relief is not granted.” Special Master’s Decision at 6 (internal citations omitted). In
reaching this decision, the special master carefully weighed several equitable considerations. Id.
at 6-7. The special master considered that petitioner had sufficient opportunity to investigate the
cost of nursing facility care, that petitioner was represented by counsel in reaching a well-
negotiated settlement agreement with the Secretary, and that petitioner had made a free,
calculated, and deliberate choice in choosing to enter into the Stipulation and to accept the May
2013 Judgment. Id. at 6. Furthermore, the special master noted that petitioner received a
significant award pursuant to the terms of the May 2013 Judgment. Id. And so, the special
master reasonably concluded that petitioner’s substantial rights have not been violated.

       Because the record before the Court shows that petitioner was well represented at the
time of the settlement and that petitioner was aware at the time of settlement of the fact that his
nursing facility care costs could exceed the amount of his monthly annuity, there are no

                                                 17
exceptional or extraordinary circumstances present here that would warrant relief under RCFC
60(b)(6). Special Master’s Decision at 6; Pet. Aff’d. at ¶ 6. And so, petitioner failed to meet his
burden to demonstrate exceptional circumstances that would entitle him to relief under RCFC
60(b)(6). Hutchins v. Zoll Med. Corp., 492 F.3d 1377, 1386 (Fed. Cir. 2007) (the Court is
granted discretion to weigh equitable considerations and to find “a proper balance between the
conflicting principles that litigation must be brought to an end and that justice should be done”
(citations omitted)).

               The Special Master Did Not Abuse Her Discretion In Finding
               That She Lacked The Authority To Modify The Annuity Payment

       Finally, the special master’s decision to deny petitioner’s motion for relief upon the
ground that she did not have the authority to modify or to liquidate the amount of the annuity
payments called for by the May 2013 Judgment was also reasonable and in accordance with law,
because the Vaccine Act and the Stipulation preclude such a change. Special Master’s Decision
at 7-8. In her decision, the special master found that the only relief that she could grant
petitioner would be to set aside and vacate the May 2013 Judgment in its entirety. Id. at 7.
Petitioner argues that the special master’s conclusion is in error because the special master has
the authority to set aside or modify a judgment in whole or in part. Pet. Mem. for Rev. at 17.
Petitioner’s argument is misguided.

       The United States Court of Appeals for the Federal Circuit has held that the Vaccine Act
is not intended to allow for subsequent increases in award judgments because later circumstances
prove the initial award insufficient. Neher by Neher v. Sec'y, Dep't of Health & Human Servs.,
984 F.2d 1195, 1200 (Fed. Cir. 1993). The Federal Circuit has also observed that congressional
amendments to the Vaccine Act suggest a “congressional intent to limit vaccine petitioners’
entitlement to compensation to costs that can be reasonably anticipated at the time of the
award.” Id.

       In this case, the May 2013 Judgment awarded petitioner those costs that were reasonably
anticipated at the time that petitioner and the Secretary reached a settlement. See May 2013
Judgment. While petitioner now contends that the amount of the annuity provided for in the
May 2013 Judgment is insufficient, the Vaccine Act does not permit subsequent enhancement of
judgment awards. Neher, 984 F.2d at 1200; see also Pet. Mem. for Rev. And so, the special

                                                 18
master correctly concluded that she could not modify or liquidate the amount of the annuity
payment provided for by the May 2013 Judgment. Special Master’s Decision at 7.

       In addition, the language of the Stipulation supports the special master’s determination
that she had no authority to modify or to liquidate the amount of the annuity payments called for
by the May 2013 Judgment. See generally Stipulation. In this regard, the Stipulation provides
that, “there is absolutely no agreement on the part of the parties hereto to make any payment or
to do any act or thing other than is herein expressly stated and clearly agreed to.” Stipulation at ¶
18. The Stipulation also notes that “a change in the nature of the injury or condition or in the
items of compensation sought, is not grounds to modify or revise this agreement.” Id. Indeed,
the plain language of the Stipulation makes clear the special master had no authority to modify or
to liquidate the amount of petitioner’s annuity payment. Id. And so, the special master did not
abuse her discretion, or act arbitrarily, capriciously or contrary to law, by concluding that she
lacked the authority to “unilaterally change the terms of the settlement agreement.” Special
Master’s Decision at 7, 8; RCFC 60(b).

V.     CONCLUSION

       As set forth above, the special master’s decision to deny petitioner’s motion for relief
from judgment upon the ground that the prospective application of the May 2013 Judgment
would be inequitable, was reasonable and in accordance with law, because the May 2013
Judgment does not have a prospective application within the meaning of RCFC 60(b)(5).
Similarly, the special master’s determination that petitioner failed to show changed
circumstances that would make the prospective application of the May 2013 judgment no longer
equitable was also reasonable and in accordance with law, because there are no changed
circumstances that impact the parties’ respective obligations under the judgment.

       Furthermore, the special master’s decision to deny petitioner’s motion for relief from
judgment pursuant to RCFC 60(b)(6) was also reasonable and in accordance with law, because
the special master properly construed the Court’s equitable power to grant relief under RCFC
60(b)(6) and determined that petitioner did not show exceptional or extraordinary circumstances
justifying relief from judgment.




                                                 19
       Finally, the special master’s decision to deny petitioner’s motion for relief from judgment
upon the ground that she did not have the authority to modify or to liquidate the amount of the
annuity payments called for by the May 2013 Judgment was reasonable and in accordance with
law, because the Vaccine Act and the language of the Stipulation preclude such a change to the
terms of petitioner’s agreement with the Secretary.

       And so, for the foregoing reasons, the Court DENIES petitioner’s motion for review and
SUSTAINS the decision of the special master.

       The Clerk is directed to enter judgment accordingly.

       Each party to bear their own costs.

       IT IS SO ORDERED.



                                                  s/ Lydia Kay Griggsby
                                                 LYDIA KAY GRIGGSBY
                                                 Judge




                                               20
