In the Um'ted States Court of Federal Claims

No. ll-77OV (Pro Se)
(Filed Under Seal: March 4, 2019 | Reissued: April 9, 2019)*

 

) Keywords: Motion for Relief from
HEATHER ROGERO and WALTER A. ) Judgment; RCFC 60(b).
ROGERO, ll. Friend of W.R., a minor,
Petitioners,

V.

SECRETARY OF THE DEPARTMENT OF
HEALTH AND HUMAN SERVICES,

Respondent.

\/\/\/\./\./\/\/\/\/\/\/

 

Heather Rogero and Walter A. Rogero, Mountain Home, AR, pro se.

Vorz's E. Johnson, Jr., Senior Trial Attorney, Torts Branch, Civil Division, U.S. Department of
Justice, Washington, DC, with whom were Catharine E. Reeves, Deputy Director, C. Salvatore
D ’Alessio, Acting Director, and Joseph H. Hunr, Assistant Attorney General, for Respondent.

OPINION AND ORDER

 

KAPLAN, Judge.

The Court is in receipt of a submission from Petitioners Heather and Walter Rogero
(“Petitioners” or “the Rogeros”), acting pro se, entitled “Petitioner’s Motion Under RCFC 59”
(“Motion”). The Court last ruled on this Vaccine Act case in January 2018, when it denied
Petitioners’ motion for review of the special master’s decision denying compensation ln the
interim, the court of appeals affirmed the Couit’s decision. Petitioners’ Motion appears to
contend that the Federal Circuit decision in this case provides support for their position that the
special master erred when he denied compensation, notwithstanding that the court of appeals
affirmed the decision of this Court denying the motion for review. _S_Y_ Motion at l.

The Court observes that the Rogeros’ time to file a motion for new trial, reconsideration,
or to alter or amend a judgment pursuant to RCFC 59 elapsed on February 9, ZOlS_twenty-

 

* This opinion was previously issued under seal on March 4, 2019. The parties were given the
opportunity to propose redactions on or before March 18, 2019. Because the only proposed
redactions did not comply with Vaccine Rule lS(b), the Court reissues this opinion and order in
its entirety.

 

eight days after judgment in this Court was entered on January 12, 2018 (Docket No. 195).
Nonetheless, in consideration of Petitioners’ pro se status, the Court Will accept the Motion and
construe it as a motion for relief from a judgment or order pursuant to RCFC 60. Because the
Petitioners have not provided grounds that justify the extraordinary relief available under RCFC
60, however, their motion must be DENIED.

BACKGROUND

The Rogeros filed their original petition for compensation on behalf of their then three-
year-old son, W.R., on Novernber 15, 2011. Docket No. 1. Although the Rogeros filed their
petition acting pro se, they eventually retained counsel in March 2013. See generally Mot. for
Entry of Appearance & Affidavit of Appointment, Docket No. 20. The Rogeros’ petition alleged
that vaccinations administered to W.R. during his early childhood Were the cause-in-fact of
several medical conditions from which he suffers, including autism spectrum disorder. _S__e§ Dec.
(“Sl\/l Dec.”) at 47, Docket No. 185 (summarizing Petitioners’ overall case theory after noting it
was “not completely clear” what they Were arguing). As previously summarized by this Court,
“[s]everal of [Petitioners’] experts opined that W.R.’s autism was caused by trace amounts of
aluminum found in his vaccines, to which W.R. was purportedly susceptible due to genetic and
other factors.” Order Denying Mot. for Review (“CFC Dec.”) at 4, Docket No. 194.

Special Master Hastings held a six-day evidentiary hearing in February and March 2016.
Following extensive post-hearing briefs, he issued a lengthy and detailed decision denying
compensation See generally Sl\/l Dec.; see also Public Dec., Docket No. 188.

Shortly after Special Master Hastings issued his decision, the case was reassigned to
Chief Special Master Nora Beth Dorsey. Docket No. 186. The Rogeros subsequently filed a
Motion for Review (Docket No. 189), which was assigned to the undersigned on October 2, 2017
(Docket No. 191). The Court sustained Special Master Hastings’s decision on the basis that he
“thoroughly examined the evidence before him, and determined, based on his assessment of the
reliability and persuasiveness of that evidence, that the Rogeros had not demonstrated causation
by a preponderance of the evidence.” CFC Dec. at 11.

On March 8, 2018, once again acting pro se, the Rogeros filed a petition for review in the
United States Court of Appeals for the Federal Circuit. Docket No. 203 at 4.l The court of
appeals affirmed the decisions below on September 12, 2018, and the mandate issued on January
25, 2019. Docket Nos. 209, 219.

The Court received the present Motion on February 25, 2019. Styling the document as a
motion “under RCFC 59” and Vaccine Rule 36 for “New Trial, Reconsideration; Altering or
Amending a Judgment,” the Rogeros assert that certain “findings” by the Federal Circuit
“disrupted Special Master Hastings’s incorrect factual allegations and medical theory he used on
Althen denying compensation.” Motion at 1. The Rogeros further allege that the Federal

 

1 In February 2018, the Rogeros’ counsel filed a motion to withdraw from the case with the
Rogeros’ consent (Docket No. 200). The Rogeros have since proceeded pro se, including at the
court of appeals

 

C£

Circuit’s [a]cknowledgement of [certain] causation facts, proved there were no legitimate
‘reliability’ issue with Petitioner’s expert reports or the Affidavits or testimony, revealing it was
a harmful error with the special master’s concession.” _lgl_. The Rogeros also assert that the special
master “ignor[ed] the sufficient material facts of claim injury,” “violated F ederal Rules of
Evidence [and other rules and statutes],” and made other eirors. l_c_l_. at 2~3. The crux of the
Rogeros’ present Motion appears to be their assertion that the decisions ruling against them in
this matter “are unsubstantiated and void” because the Court (and presumably the special master)
made several alleged errors which “obligate[]” them “to set aside the Decision with Relief.” I_cL
at 3. The remainder of the twenty-page Motion discusses the record evidence, alleges errors on
the part of the adjudicators at each level of review, and concludes with the Rogeros’ request for
“relief [from] Judgment, [the special master’s] Decision set aside, and due compensation
rendered.” l_d_. at 20.

DISCUSSION

RCFC 60(b) states that the Court “may relieve a party . . . from a final judgment, order,
or proceeding” for any of six enumerated 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;

(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

RCFC 60(b). “A motion under RCFC 60(b) must be made within a reasonable time,” and for
motions based on the first three enumerated reasons, must be made “no more than a year after the
entry of the judgment or order or the date of the proceeding.” RCFC 60(0)(1).

“As a remedial provision, Rule 60(b) is to be ‘liberally construed for the purpose of doing
substantial justice.”’ Patton v. Sec’v of Dep’t of Health & Human Servs., 25 F.3d 1021, 1030
(Fed. Cir. 1994) (citing 7 J ames W. Moore & Jo Desha Lucas, Moore’s Federal Practice
1111 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 Lilieberg v. Health Servs. Acquisition
_C_Qi_'@, 486 U.S. 847, 864 (1988)) (alterations omitted). Therefore, in ruling on a motion under
RCFC 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, F ederal Practice and Procedure § 2851 (2d ed. 1995)).

Here, only reasons (4), (5), and (6) are available as potential grounds for the Rogeros’
Motion because it was filed more than one year after the Court denied their motion for review on
January ll, 2018.2 The closest the Rogeros come to alleging any of these grounds is their
assertion that the decisions ruling against them are “unsubstantiated and void” due to the
purported errors set forth in the Motion. _S_ee Motion at 3. The Supreme Court has defined a
“void” judgment for purposes of Fed. R. Civ. P. 60(b)(4) as “one so affected by a fundamental
infirmity that the infirmity may be raised even after the judgment becomes final.” United Student
Aid Funds, lnc. v. Espinosa, 559 U.S. 260, 270 (2010).3 “The list of such infirmities is
exceedingly short.” l_d. The Court has explicitly stated that a judgment is not void “simply
because it is or may have been erroneous.” l_d. (quotations and citations omitted). “lnstead, Rule
60(b)(4) applies only in the rare instance where a judgment is premised either on a certain type
of jurisdictional error or on a violation of due process that deprives a party of notice or the
opportunity to be heard.” § at 271 (citations omitted); see also Brovhill Furniture Indus.. lnc. v.
Craftmaster Furniture Corp., 12 F.3d 1080, 1084 (Fed. Cir. 1993) (“[l]t is well established that a
judgment is void for purposes of 60(b)(4) only when the court that rendered the judgment lacked
jurisdiction or failed to act in accordance with due process of law.”).

 

 

Because the Rogeros have not alleged any “fundamental infirmity” beyond their ordinary
assertions of error, they have not established that the previous judgment of this Court is void
within the meaning of RCFC 60(b)(4). ln particular, they have not alleged jurisdictional error,
and although they make passing reference to due process rights (l\/Iotion at 20), the record in this
case establishes that the Rogeros have not been deprived of “notice or the opportunity to be
heard.” § United Student Aid Funds, 559 U.S. at 271. As referenced above, the Rogeros have
presented their case to the special master (including at a six-day evidentiary hearing), this Court,
and the court of appeals.

 

Likewise, the Rogeros have neither argued nor shown any grounds for relief pursuant to
RCFC 60(b)(5) or (6). While the Court is sympathetic to the Rogeros and appreciates that they
firmly believe in the merits of their claims, the relief available pursuant to RCFC 60(b) does not
encompass the right to relitigate one’s case. For that reason, their Motion must be denied.

 

2 For the sake of clarity, the Court observes that, to the extent the Rogeros wish to challenge the
Federal Circuit’s decision in the present Motion, the Court lacks the authority to afford relief
from a judgment or order of the court of appeals §§e Haddad v. United States, Nos. 15-640C &
15-820C, 2015 WL 7730933, at *2 n.6 (Fed. Cl. Nov. 30, 2015) (Rule 60 “only applies to
judgments issued by our court.”) (citing Carney v. United States, 199 Ct. Cl. 160, 162-64
(1972)).

3 The language of Fed. R. Civ. P. 60(b) is essentially identical to that of RCFC 60(b).

 

CONCLUSION

The Clerk of the Court is directed file Petitioners’ Motion under seal on the docket in this
case. Furthermore, for the reasons discussed above, the Motion is DENIED.

IT IS SO ()RDERED.

s/
ELAINE D. KAPLAN
Judge

 

