Dimasi v. Hhs ( 2022 )

Case: 22-1854 Document: 36 Page: 1 Filed: 12/19/2022
United States Court of Appeals
for the Federal Circuit
______________________
STEPHANIE DIMASI,
Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2022-1854
______________________
Appeal from the United States Court of Federal Claims
in No. 1:15-vv-01455-AOB, Judge Armando O. Bonilla.
______________________
Before MOORE, Chief Judge, PROST and TARANTO, Circuit
Judges.
PER CURIAM.
ORDER
I
Stephanie DiMasi, at the time 47 years old and en-
rolled as a nurse-practitioner student, received an influ-
enza vaccine on December 4, 2012. Appx. 15. She was
admitted to the hospital on December 5, 2012, released the
next day, and then readmitted on December 8, 2012. Appx.
83–90, 96–99. Just under three years later, Ms. DiMasi,
through her counsel, filed a petition in the United States
Court of Federal Claims (Claims Court) seeking
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2 DIMASI v. HHS
compensation under 42 U.S.C. §§ 300aa-10 to -34 (the Vac-
cine Act), alleging injuries from the vaccine. Appx. 16, 21,
25. Ms. DiMasi’s counsel sought a decision on the papers,
without submission of oral testimony. On November 7,
2019, the special master assigned to the matter denied
compensation. Appx. 21–29.
The special master noted that the parties agreed on the
character and existence of the post-vaccination conditions
at issue, as ultimately diagnosed in 2016 and 2017: “small
fiber neuropathy” and “postural tachycardia syndrome”
(POTS), which are related. Appx. 27; see also Appx. 42, 65.
He also noted that no claim of significant aggravation of a
preexisting condition, see 42 U.S.C. § 300aa-11(c)(1)(C),
had been presented. Appx. 21. After analyzing the evi-
dence, including expert reports on both sides, the special
master found that the vaccine was not the cause in fact of
the conditions at issue, because her “conditions pre-dated
the influenza vaccination.” Appx. 21; see also Appx. 27–29.
Ms. DiMasi had thirty days to seek Claims Court re-
view of the special master’s ruling. 42 U.S.C. § 300aa-
12(e)(1). No such review was sought, and the Claims Court
entered final judgment against the claim for compensation
on December 11, 2019. Appx. 30.
On September 15, 2020, within a year of the final judg-
ment, Ms. DiMasi sent the special master a letter, with
medical records and other attachments, requesting that
she be allowed to proceed pro se (because of alleged signif-
icant problems with her counsel’s actions) and that her
case be reopened. Appx. 31–151. Her counsel promptly
submitted a responsive affidavit. Appx. 153–56. The spe-
cial master allowed Ms. DiMasi to proceed pro se and con-
strued her request to reopen her case as a motion for relief
from judgment under Claims Court Rule 60. Appx. 162,
181–82, 190–91. Ms. DiMasi responded to counsel’s affida-
vit, Claims Ct. Dkt. No. 103, and the Secretary opposed the
motion, Claims Ct. Dkt. No. 106. On June 3, 2021, the
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DIMASI v. HHS 3
special master denied Ms. DiMasi’s motion, Appx. 157, but
then, on her request for reconsideration, Appx. 172–76;
Claims Ct. Dkt. No. 113, he vacated the denial, Claims Ct.
Dkt. No. 115 (vacatur). Thereafter, the government made
a supplemental filing, Claims Ct. Dkt. No. 120, and Ms. Di-
Masi sought leave to file additional material, Appx. 16 n.2,
182.; Claims Ct. Dkt. No. 118.
We view Ms. DiMasi’s initial September 2020 filing,
her response to counsel, and her request for reconsidera-
tion as collectively constituting her Rule 60 motion for re-
lief from the December 2019 judgment. Ms. DiMasi made
several contentions. Perhaps most centrally, she asserted
a fundamental misunderstanding about facts regarding
the precise timing of the emergence of key (neuropathy)
symptoms, a misunderstanding that, she alleged, is re-
flected in expert submissions and infected both the special
master’s denial of compensation and her own counsel’s sub-
missions, including his choice not to present a significant-
aggravation claim. See, e.g., Appx. 31–32 (Sept. 2020 let-
ter); Ex. 13 at 17–18 (expert reports); Ex. 7 at 1 (expert re-
ports); Appx. 24, 21 (denial of compensation); Appx. 153
(counsel affidavit). She also alleged misunderstandings of
certain pre-vaccination records. See, e.g., Appx. 31; Ex. 19
at 3, 17 (quoted at Appx. 193–94); Ex. 7 at 1 (quoted at
Appx. 194). Ms. DiMasi tied the misunderstandings and
her counsel’s submissions and choices to allegations that
counsel failed to fulfill duties to communicate with her and
(unless counsel withdrew) to respect her right to make cer-
tain key choices as the client in the attorney-client relation-
ship, including some choices about what claims to raise.
See, e.g., Appx. 32, 153. In addition, she asserted deficien-
cies by counsel in not seeking review by the Claims Court
of the compensation denial, not definitively telling her he
would not do so, and not informing her of the filing dead-
line. See, e.g., Appx. 32, 153.
On November 10, 2021, the special master denied Ms.
DiMasi’s Rule 60 motion and motion for leave to file
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4 DIMASI v. HHS
additional material. Appx. 178. He first addressed the ad-
ditional-material motion, which he denied after elaborat-
ing legal standards for various provisions of Rule 60. Appx.
183–90, 204–09. As to the Rule 60 motion itself, the special
master, relying on legal formulations set forth in the dis-
cussion of the additional-material motion, denied relief
from the December 2019 judgment. Appx. 190–99. Among
other conclusions, the special master rejected Ms. DiMasi’s
allegation of misunderstanding of evidence about when
precisely neuropathy symptoms manifested themselves af-
ter the vaccination (immediately or, instead, after a few
days) and the related challenge to counsel’s decision to re-
quest a ruling on the record without oral testimony from
Ms. DiMasi and his decision not to raise a significant-ag-
gravation claim. Appx. 191–97. Regarding counsel’s not
having sought further review of the November 2019 special
master’s ruling, which the special master said presented “a
close call,” the special master recognized the deficiencies in
counsel’s communication with Ms. DiMasi but ultimately
found that Ms. DiMasi failed to act diligently to preserve
her rights. Appx. 199.
The Claims Court subsequently denied Ms. DiMasi’s
motion for review of the special master’s November 2021
decision, finding no reversible error. Appx. 15–20. Ms. Di-
Masi timely appealed, still acting pro se. We have jurisdic-
tion under 28 U.S.C. § 1295(a)(3). Under the Vaccine Act,
we review a decision of the special master “under the same
standard as the [Claims Court].” Rodriguez v. Secretary of
Health & Human Services, 632 F.3d 1381, 1383–84 (Fed.
Cir. 2011). We must set aside the decision if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law.” Avera v. Secretary of Health & Human
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DIMASI v. HHS 5
Services, 515 F.3d 1343, 1347 (Fed. Cir. 2008) (quoting 42
U.S.C. § 300aa-12(e)(2)(B)).
II
Ms. DiMasi’s pro se filings raise issues whose resolu-
tion would significantly benefit from additional briefing
(and oral argument), including from an attorney appointed
by this court as an amicus to support her appeal. We here
selectively identify certain issues raised in this appeal.
The new briefing should address those issues. We do not
confine the new briefing to those issues, to the exclusion of
other issues that are pertinent to the resolution of the ap-
peal.
The Claims Court’s Rule 60(b) identifies various
“grounds for relief from a final judgment, order, or proceed-
ing.” Claims Court Rule 60(b) (capitalization removed).
We look to cases interpreting Rule 60(b) of the Federal
Rules of Civil Procedure, which governs in district courts,
in interpreting the identical Claims Court’s Rule 60(b). See
Progressive Industries, Inc. v. United States, 888 F.3d 1248,
1253 n.4 (Fed. Cir. 2018); Information Systems & Networks
Corp. v. United States, 994 F.2d 792, 794 n.3 (Fed. Cir.
1993). We review a decision to grant or deny relief under
Rule 60(b) for an abuse of discretion, including an error of
law or clearly erroneous finding of fact. Patton v. Secretary
of Department of Health & Human Services, 25 F.3d 1021,
1029 (Fed. Cir. 1994). In some circumstances, a trial court
considering a Rule 60(b) motion must resolve factual dis-
putes, and sometimes a hearing is required in order to do
so. See, e.g., Sheng v. Starkey Laboratories, Inc., 53 F.3d
192 (8th Cir. 1995); Michaud v. Michaud, 932 F.2d 77 (1st
Cir. 1991); Garabedian v. Allstates Engineering Co., 811
F.2d 802 (3d Cir. 1987); Montes v. Janitorial Partners, Inc.,
859 F.3d 1079, 1084–85 (D.C. Cir. 2017); Durukan Amer-
ica, LLC v. Rain Trading, Inc., 787 F.3d 1161, 1164 (7th
Cir. 2015); Bouret-Echeverria v. Caribbean Aviation
Maintenance Corp., 784 F.3d 37, 46–49 (1st Cir. 2015); 11
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6 DIMASI v. HHS
Charles A. Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 2865 (3d ed. updated
Apr. 2022).
In this case, the question arises whether the special
master must a hold a hearing, or otherwise have further
factfinding proceedings, to resolve factual disputes perti-
nent to Ms. DiMasi’s Rule 60(b) motion. In the present Or-
der, we focus specifically on what is needed to apply Rule
60(b)(1) in this case. Ms. DiMasi filed for relief within the
one year allowed for 60(b)(1) motions. See Claims Court
Rule 60(c)(1); Fed. R. Civ. P. 60(c)(1). It is not apparent
that any of the 60(b)(2)–(5) bases applies to this case. And
the catch-all 60(b)(6)—which is not subject to the one-year
filing rule, see Claims Court Rule 60(c)(1); Fed. R. Civ. P.
60(c)(1)—“is available only when Rules 60(b)(1) through
(b)(5) are inapplicable,” Kemp v. United States, 142 S. Ct.
1856, 1861 (2022). Rule 60(b)(1) is therefore an appropri-
ate first subject of analysis. 1
A
Rule 60(b)(1) authorizes relief from a judgment for,
among other things, “mistake.” A “mistake,” the Supreme
Court has recently ruled, is a “factual misconception or
misunderstanding” or an “error of law or fact,” whether by
1 Without being exhaustive, we note two of the topics
not otherwise discussed in this Order. First, we do not dis-
cuss the challenge to counsel’s not seeking Claims Court
review of the special master’s November 2019 ruling. It is
not apparent what prospect Ms. DiMasi would have had in
any such review on the record, including arguments, then
before the special master. The issue we discuss involves,
in contrast, an argument that the record itself was defec-
tive, with asserted deficiencies of counsel responsible. Sec-
ond, we also do not discuss here the denial of leave to file
additional material in support of the Rule 60(b) motion.
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DIMASI v. HHS 7
a party or by the court. Kemp, 142 S. Ct. at 1862 (cleaned
up). It is implicit in the definition that invocation of this
provision is not available for a mere later-regretted choice
not infected by such an incorrect understanding. Cf. In re
Dinsmore, 757 F.3d 1343, 1347–48 (Fed. Cir. 2014) (dis-
cussing “error” required for reissue of a patent). The as-
serted mistake we discuss in this Order is about medical
facts—a mistake, it is asserted, that affected the adjudica-
tion and that entered the record essentially uncontested,
and infected counsel’s choices about what claims to press,
because of counsel’s failures to fulfill duties inherent in the
attorney-client relationship.
In this combination of factual mistake and attorney
failure, the factual mistake we discuss here concerns the
appearance of neuropathy symptoms after the vaccination.
Ms. DiMasi asserts that the medical records written by two
physicians (Drs. Chen and Fischer) who saw her a few
weeks after her vaccination and listened to her account of
the symptoms she had a few weeks earlier, contain inaccu-
rate descriptions of the timing (perhaps also of the body lo-
cation) of her neuropathy symptoms in the first several
days after the vaccination—whether the inaccuracy re-
sulted from her own error or imprecision in articulation in
a doctor-patient interview or from the physicians’ misun-
derstanding of what she said. The timing issue is whether
the neuropathy symptoms (unlike other symptoms) mani-
fested themselves within hours of the vaccination, as those
records report her saying, or, instead, not until several
days later, as she alleges. Compare Appx. 24; Ex. 13 at 17,
18; Ex. 7 at 1, with DiMasi Opening Br. at 12; Appx. 37;
Appx. 220. As support for her allegation, Ms. DiMasi
points to evidence of medical and other records more con-
temporaneous with the days in question—from December
4, 2012, the day of vaccination, to a few days later—as not
showing the neuropathy symptoms until several days after
the vaccination. See Appx. 23, 37, 59, 173, 224; Appx. 83–
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8 DIMASI v. HHS
90; Appx. 224 (referring to Claims Ct. Dkt. No. 31-2); Ex. 6
at 48; Ex. 13 at 17. 2
As to the attorney-failure component of the central al-
legation, Ms. DiMasi has alleged “that she advised” her
counsel “on several occasions that the neurological symp-
toms did not begin until three to four days after the vac-
cination.” Appx. 193; Appx. 154–55 ¶¶ 16–17 (counsel
stating that she supplied him a marked-up copy of the Dr.
Chen record indicating where she thought it was inaccu-
rate). 3 Nevertheless, she has alleged, her counsel did not
2 The records include one or more reports submitted to
the Vaccine Adverse Event Reporting System (VAERS)
maintained by Centers for Disease Control and Prevention
(CDC) and Food and Drug Administration, both of which
are components of the Department of Health and Human
Services. In this court, Ms. DiMasi moved to supplement
the appendix just after receiving from the CDC her previ-
ously requested official VAERS record. We grant the re-
quest. The Secretary does not deny that this is an accurate
copy of an official government record being submitted
simply to establish, at this point, the fact that the record
says what it says. The government has not suggested that
the document is inappropriate for judicial notice of that
fact. See Fed. R. Evid. 201; 16A Charles A. Wright & Ar-
thur R. Miller, Federal Practice and Procedure § 3956.1
(5th ed. updated Apr. 2022) (under Fed. R. Evid. 1101, ap-
pellate court may take judicial notice of a fact that meets
the Fed. R. Evid. 201 standard).
3 In discussing the grievance about misunderstanding
of post-vaccination medical evidence, the Claims Court
used the word “doctored” to refer to Ms. DiMasi’s markup
for counsel of the report from Dr. Chen. Appx. 18–19. We
have seen no justification to support any suggestion that
she altered the record to hide its original content to fool
anyone into believing that the original contained the words
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DIMASI v. HHS 9
challenge the accuracy of the medical records in what he
submitted to the special master or offer her testimony on
the point, see Appx. 174–76, a decision she alleges was not
preceded by an adequate discussion with her, Appx. 175,
211, 216–17, even though the portions of the records at is-
sue seemingly rested on an oral conversation to which she
was a party several weeks after the vaccination.
Ms. DiMasi contends that correction of the alleged mis-
take could in fact undermine the special master’s Novem-
ber 2019 denial of Vaccine Act compensation. The dispute
over entitlement to compensation, as presented to the spe-
cial master, concerned the origin of the conditions at issue,
with necessary evaluation of the presence of symptoms in
two time periods: after vaccination and before vaccination.
Ms. DiMasi also challenges counsel’s decision not to assert
a significant-aggravation claim before the special master,
see Appx. 32; Appx. 155 ¶ 22, which might be affected by a
proper understanding of post-vaccination manifestation of
the particular symptoms. We understand Ms. DiMasi to
contend that the asserted mistake about the post-vaccina-
tion facts contributed to counsel’s decision not to claim
that, even if a condition preexisted vaccination (as the Sec-
retary asserted), it was significantly aggravated by the vac-
cine—a claim that, not presenting the starker before-
versus-after choice of causation, may be easier to establish
and could have been argued in the alternative. And Ms.
DiMasi alleges that counsel did not adequately consult
with her about the decision not to present a significant-ag-
gravation claim. See Appx. 174.
she wrote—rather than using a familiar technique to indi-
cate, on her copy (not the only copy, see Ex. 13 at 17), pre-
cisely where she thought the record was inaccurate,
without any pretense that her words were the original. See
Appx. 193–94 (special master discussing Ms. DiMasi’s
handwritten “corrections” to medical report).
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10 DIMASI v. HHS
The special master expressly relied on Ms. DiMasi’s
consultations with Drs. Chen and Fischer in his evaluation
of the post-vaccination facts to assess the plausibility of a
connection of the at-issue conditions to the vaccination by
way of an immunological reaction. Appx. 24, 28, 194. The
special master’s November 2019 opinion cites and quotes
key passages from the records of Drs. Chen and Fischer at
issue, including specifically what those records themselves
say to the effect that the (allegedly misunderstood) facts
about symptoms and their emergence post-vaccination run
counter to an inference of causation by the vaccine. Appx.
24, 28. Moreover, the Secretary’s expert, whose conclusion
the special master adopted as persuasive, Appx. 28–29, re-
lied on at least Dr. Chen’s statements. See Leist Report at
8; Leist Supp. Report at 1. The motion for judgment on the
record that Ms. DiMasi’s own counsel filed on her behalf
itself relies on Drs. Chen and Fischer’s statements for the
timing of her neurological symptoms, Claims Ct. Dkt. No.
87, at 2–3, as does the Secretary’s response to that motion,
Claims Ct. Dkt. No. 88, at 4, 29–30. Significantly, the No-
vember 2019 opinion does not seem to say that, even if the
tingling symptoms of neuropathy manifested themselves
when and how Ms. DiMasi asserts, the special master
would still find that the neuropathy condition (or related
POTS) preexisted the vaccination. And it does not address
a significant-aggravation claim, which was not presented.
B
For at least the reasons just discussed, there appears
to be a substantial contention here, presenting factual dis-
putes, of potentially material mistake under Rule 60(b)(1),
involving certain attorney failures and the results of those
failures. We ask the amicus and the Secretary to address
whether the special master’s factfinding procedures were
legally sufficient in this case, including his decision of Ms.
DiMasi’s Rule 60 motion without conducting a hearing.
There also are serious questions about whether governing
legal standards for Rule 60(b) relief nevertheless justify
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DIMASI v. HHS 11
denial of further factfinding proceedings in these circum-
stances.
1
When discussing Rule 60(b)(1), the special master re-
cited and accepted as applicable, Appx. 187, this court’s
three-part approach laid out in Information Systems, which
requires a court to consider “(1) whether the non-defaulting
party will be prejudiced; (2) whether the defaulting party
has a meritorious [claim or] defense; and (3) whether cul-
pable conduct of the defaulting party led to the default,”
994 F.2d at 795. The Secretary has not urged departure
from that approach. Secretary’s Br. at 4, 12–13. 4
The special master found for Ms. DiMasi on the first
two elements—finding that the government would not be
prejudiced if Ms. DiMasi’s Rule 60 motion were granted
and that Ms. DiMasi had a meritorious claim in the sense
that a different judgment regarding compensation might
well be required if her claim were credited. Appx. 187. So
far, the Secretary in this court seemingly has not contested
those findings or disputed that they apply to the analysis
4 The special master laid out the Rule 60(b)(1) ap-
proach of Information Systems when discussing the addi-
tional-materials motion, but he did not articulate a
different approach to Rule 60(b)(1) when considering the
motion for relief from judgment. The Secretary also had
not made such a distinction. The special master also did
not rely on, and the Secretary has not urged, a different
standard for the “mistake” component of Rule 60(b)(1),
even though Information Systems addresses the “excusable
neglect” component (and in a default-judgment context).
The Secretary, however, is not precluded from discussing
whether the Information Systems approach (including any
willfulness requirement) applies in this case in the re-
newed briefing.
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12 DIMASI v. HHS
of Ms. DiMasi’s Rule 60 motion. The special master, how-
ever, applied the third factor, Appx. 187–88, without recit-
ing the Information Systems ruling that “culpable conduct”
means that a “party willfully declined to follow a court’s
rules and procedures,” Information Systems, 994 F.2d at
796. He made no finding, and we have not been shown a
basis, at least in the current briefing, on which he could
have found, culpable conduct under the willfulness stand-
ard articulated in Information Systems.
2
The special master, citing Pioneer Investment Services
Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380(1993), found that Ms. DiMasi had engaged in culpable con-
duct because the actions and decisions of her counsel—in-
cluding those actions that Ms. DiMasi alleges support her
claim of attorney abandonment—were ultimately the re-
sponsibility of Ms. DiMasi. Appx. 187, 191–99. But no
analysis by the special master or argument by the Secre-
tary in this court seeks to justify using Pioneer to depart
from Information Systems—which addressed Pioneer in
adopting the standard it did. See 994 F.2d at 795–96.
We have more questions than answers at this point
about the appropriate standards for binding a client to
counsel’s decisions in circumstances where a factual “mis-
take” of a party or its counsel is later alleged. The proper
scope of Rule 60(b)(1)’s mistake component requires more
inquiry, and that inquiry must take account of the poten-
tial frequency of do-overs under the appropriate standards.
We ask the amicus and the Secretary to address the extent
to which Pioneer and Information Systems apply to the
Rule 60(b)(1) mistake component here and whether the
special master applied the correct framework to the facts
of this case. We further ask them to address whether Ms.
DiMasi’s Rule 60(b) motion, considered under the mistake
component of Rule 60(b)(1), can prevail without a finding
of attorney failure.
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DIMASI v. HHS 13
In Pioneer itself, the Supreme Court did not address
the “mistake” component of Rule 60(b)(1). It addressed the
“excusable neglect” component (to apply a bankruptcy rule
containing the same language). 507 U.S. at 395–99. In
that context, the Court reiterated the principle that a client
can sometimes be held accountable for the actions of its at-
torney as agent. Id. at 396–97. The Court ruled that deny-
ing relief in the case before it was an abuse of discretion.
Id. at 399.
Pioneer involved asserted attorney deficient perfor-
mance of a role (complying with court deadlines) allocated
to counsel under standard principles defining an attorney–
client relationship—making the principal (client) responsi-
ble for the agent’s (counsel’s) acts in that assigned role. See
Restatement 3d Law Governing Lawyers § 27 (updated
Oct. 2022). This case, in contrast, involves allegations that
could be understood as asserting an attorney usurpation or
impairment of the client’s own retained authority under
those principles. See, e.g., id. § 16(1) (“To the extent con-
sistent with the lawyer’s other legal duties and subject to
the other provisions of this Restatement, a lawyer must . . .
proceed in a manner reasonably calculated to advance a cli-
ent’s lawful objectives, as defined by the client after consul-
tation.”); id. § 16 cmt. c (“The client, not the lawyer,
determines the goals to be pursued . . . .”); id. § 16 cmts. d,
e; id. § 20(1) (“A lawyer must keep a client reasonably in-
formed about the matter and must consult with a client to
a reasonable extent concerning decisions to be made by the
lawyer under §§ 21–23.”); id. § 20 cmt. b; id. § 20 cmt. c
(“Important events might affect the objectives of the client,
such as the assertion or dismissal of claims against or by
the client . . . .”); id. § 21 & cmt. d; ABA Model Rule of Pro-
fessional Conduct 1.2(a) (“Subject to paragraphs (c) and (d),
a lawyer shall abide by a client’s decisions concerning the
objectives of representation and, as required by Rule 1.4,
shall consult with the client as to the means by which they
are to be pursued.”); ABA Model Rule of Professional
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14 DIMASI v. HHS
Conduct 1.4; cf. Restatement 3d Law Governing Lawyers
§ 22(1) (updated Oct. 2022) (“[T]he following and compara-
ble decisions are reserved to the client except when the cli-
ent has validly authorized the lawyer to make the
particular decision: whether and on what terms to settle a
claim . . . .”); Michaud, 932 F.2d at 80 (discussing attorney
duty to obtain client authorization to dispose of claim);
Garabedian, 811 F.2d at 803 (same). We have been pre-
sented no analysis of the relevance of such distinctions
among different attorney responsibilities. We ask that the
parties address how Ms. DiMasi’s counsel-related allega-
tions apply to the Rule 60(b) analysis.
3
We note several other potential problems with the spe-
cial master’s analysis denying Ms. DiMasi’s Rule 60 mo-
tion. The special master relied on an “extraordinary
circumstances” requirement without distinction among the
subsections of Rule 60(b). See Appx. 184, 191–92, 194. But
the Supreme Court and our court have explained that the
requirement that a movant show the existence of “extraor-
dinary” (or “exceptional”) circumstances applies only to mo-
tions seeking relief under Rule 60(b)(6), not 60(b)(1)—
reflecting the importance of not allowing the catch-all
(b)(6), which lacks a one-year-filing limit, to override the
constraints on (b)(1) (or other) grounds for relief. See
Kemp, 142 S. Ct. at 1861; Pioneer, 507 U.S. at 393 (“To jus-
tify relief under subsection (6), a party must show ‘extraor-
dinary circumstances’ . . . .”); Information Systems, 994
F.2d at 795 (“While subsection (6) requires a showing of
‘extraordinary circumstances,’ subsections (1) and (6) of
Rule 60(b) ‘are mutually exclusive,’ and the required show-
ing of extraordinary circumstances under subsection (6)
does not apply to . . . subsection (1).” (citations omitted)).
That requirement does not apply to analysis of Ms. Di-
Masi’s motion under, for example, Rule 60(b)(1).
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DIMASI v. HHS 15
The special master also stated that “attorney errors
amounting to gross negligence are not considered excep-
tional circumstances that warrant reopening the case.”
Appx. 193. The special master cited four decisions in sup-
port of this proposition. Appx. 184–85. But the cited deci-
sions do not seem to support the statement—even aside
from the fact that the point being discussed in those deci-
sions was how to apply the exceptional (or extraordinary)
circumstances standard under Rule 60(b)(6), not 60(b)(1).
Three of the cited decisions state that gross negligence
of an attorney can be an extraordinary circumstance. Lal
v. California, 610 F.3d 518, 521 (9th Cir. 2010) (“We hold
. . . that an attorney’s gross negligence constitutes an ex-
traordinary circumstance warranting relief from a judg-
ment . . . .”); Community Dental Services v. Tani, 282 F.3d
1164, 1172 (9th Cir. 2002) (“Where, as here, an attorney
engages in grossly negligent conduct resulting in [a de-
fault] judgment, the client merits relief under Rule
60(b)(6), and may not be held accountable for his attorney’s
misconduct.”); Boughner v. Secretary of Health, Education
& Welfare, 572 F.2d 976, 978 (3d Cir. 1978) (“We reverse,
however, on the basis that the motion to vacate should have
been granted under Rule 60(b)(6). The conduct of [counsel]
indicates neglect so gross that it is inexcusable. . . . We
hold, therefore, that in the factual setting here, which war-
rants relief under Rule 60(b)(6), appellants are not bound
by the acts of their attorney for the purposes of the rule.”).
And the fourth opinion cited by the special master, Heim v.
Commissioner, 872 F.2d 245 (8th Cir. 1989)—for the prop-
osition that “any errors committed by [counsel], even ac-
cepting the designation of gross negligence, do not
constitute an adequate showing of ‘exceptional circum-
stances,’” Appx. 185 (alteration in original) (quoting Heim,
872 F.2d at 248)—is not an opinion of the court. It is Judge
Gibson’s separate opinion, which was not joined by the rest
of the panel. See Superior Seafoods, Inc. v. Tyson Foods,
Inc., 620 F.3d 873, 878 (8th Cir. 2010) (citing “Heim v.
Case: 22-1854 Document: 36 Page: 16 Filed: 12/19/2022
16 DIMASI v. HHS
Comm’r, 872 F.2d 245, 249 (8th Cir. 1989) (John R. Gibson,
J., writing separately)”). The two other members of the
panel concurred only “in the result,” not “reach[ing] the
question of whether the taxpayers have made an adequate
showing of exceptional circumstances under [Rule] 60(b).”
Heim, 872 F.2d at 249 (Lay, C.J., concurring). We ask the
amicus and the Secretary to address whether the foregoing
cases (and any others it finds applicable) regarding attor-
ney conduct that amounts to “gross negligence” extend to
the facts of this case.
III
To be clear, the foregoing represents only our current
understanding of the issues and does not represent any fi-
nal conclusion on any issue of law or characterization of the
record. This order does not close the door on arguments
regarding any of the issues, or challenges to any of the as-
sumptions, that are reflected in this order. Counsel should
present all applicable arguments that advance their re-
spective positions.
The court will appoint counsel to file a brief (and argue)
as amicus in support of Ms. DiMasi’s appeal. Upon an-
nouncement of the appointment on our docket, counsel will
have 60 days to file such a brief. The Secretary will have
40 days from that filing to respond, and amicus 30 days
thereafter to reply. The length and content standards for
formal briefs of an appellant and appellee shall govern ami-
cus and the Secretary respectively.
Two issues concerning confidentiality need to be ad-
dressed. First, the ability of amicus to carry out the as-
signed task depends on amicus having access to the
confidential materials in the Claims Court record. Within
one week of this Order, each of Ms. DiMasi and the Secre-
tary shall file with this court a statement authorizing ami-
cus to have access to the full Claims Court record under a
standard protective order or identifying the portions of the
record for which such access is being denied. If access is
Case: 22-1854 Document: 36 Page: 17 Filed: 12/19/2022
DIMASI v. HHS 17
denied in whole or in part, the court will consider how to
proceed.
Second, either in the filings required in the preceding
paragraph (one week after this Order) or in separate filings
made within two weeks after those filings, Ms. DiMasi and
the Secretary shall also address the broader issue of confi-
dentiality against the public. The new briefs now ordered
will be more useful to this court, including in the writing of
any opinion, if confidentiality is waived, in whole or in
large part. Much of the material currently marked confi-
dential in the appendix is already disclosed in public docu-
ments, including the special master’s opinions and Ms.
DiMasi’s briefing in this court. Ms. DiMasi and the Secre-
tary shall inform the court whether they will waive confi-
dentiality as to all the appendix materials, and if not, they
shall precisely specify the exact portions they wish to re-
tain confidential status. The court will consider how to pro-
ceed after receiving those submissions.
IT IS SO ORDERED.
FOR THE COURT
December 19, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court