Dimasi v. Hhs ( 2023 )

Case: 22-1854 Document: 73 Page: 1 Filed: 07/24/2023
NOTE: This disposition is nonprecedential.
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.
______________________
Decided: July 24, 2023
______________________
STEPHANIE DIMASI, Melrose, MA, pro se.
CAROLINE D. LOPEZ, Civil Division, United States De-
partment of Justice, Washington, DC, argued for respond-
ent-appellee. Also represented by BRIAN M. BOYNTON, C.
SALVATORE D'ALESSIO, LARA A. ENGLUND, CLAUDIA BARNES
GANGI, HEATHER LYNN PEARLMAN, ABBY CHRISTINE
WRIGHT.
J. KAIN DAY, Munger, Tolles & Olson LLP, Washington,
Case: 22-1854 Document: 73 Page: 2 Filed: 07/24/2023
2 DIMASI v. HHS
DC, argued for amici curiae J. Kain Day, Ginger Anders.
Also represented by GINGER ANDERS.
______________________
Before MOORE, Chief Judge, PROST and TARANTO, Circuit
Judges.
TARANTO, Circuit Judge.
Stephanie DiMasi received a seasonal influenza vac-
cination on December 4, 2012. In late 2015, through coun-
sel, she timely filed a petition in the U.S. Court of Federal
Claims (Claims Court) under the National Vaccine Injury
Compensation Program (Vaccine Act), Pub. L. No. 99-660,tit. III, 100 Stat. 3755 (1986) (codified at 42 U.S.C.
§§ 300aa-10 through -34), seeking compensation for condi-
tions assertedly caused by the vaccine. The Claims Court
special master, prompted by pre-vaccination medical rec-
ords and expert opinion suggesting that the conditions pre-
existed the 2012 vaccination, directed the parties to ad-
dress the elements of a claim of significant aggravation,
i.e., a claim that the vaccine, even if it did not cause the
initial onset of the conditions, made the conditions signifi-
cantly worse. In response, counsel for Ms. DiMasi first
failed, then expressly declined, to present such an alterna-
tive claim. With the only live claim being that the 2012
vaccination caused the initial onset of the conditions, the
special master then denied Ms. DiMasi’s petition for com-
pensation, a denial that became a final judgment.
Approximately nine months later, Ms. DiMasi, now pro
se, sought to reopen her case. Of importance here, she
made two challenges. First, she argued that her counsel
and the special master made a mistake about precisely
when, post-vaccination, her critical symptoms first ap-
peared (immediately or four days later) and that the mis-
take infected the adjudication of the initial-onset claim, the
only claim presented. Second, she argued that her counsel
never informed her of the possibility of filing a significant-
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DIMASI v. HHS 3
aggravation claim or obtained her consent when deciding,
on his own, not to present such a claim. The special mas-
ter, treating her filings as a motion for relief from judgment
under Claims Court Rule 60(b), denied Ms. DiMasi’s mo-
tion, reasoning (as her second challenge) that her former
counsel’s decision not to press a significant-aggravation
claim was a tactical choice that he had the authority to
make within the attorney–client relationship. The Claims
Court affirmed.
Ms. DiMasi timely petitioned this court for review, and
the matter was briefed by her (pro se) and by the Secretary.
Seeking additional assistance in clarifying both the facts
and the relevant law, we then appointed amici to develop
arguments in support of Ms. DiMasi’s appeal. Amici filed
a brief doing so, the Secretary responded, amici replied,
and we heard oral argument.
We now hold that Ms. DiMasi is not entitled to relief
based on her first challenge. As relevant here, although
Rule 60(b)(1) authorizes relief from judgment for a mis-
take, we conclude that the asserted mistake of counsel and
the special master—a mistake, based on assertedly inaccu-
rate post-vaccination records, about the precise post-vac-
cination timing of manifestation of Ms. DiMasi’s critical
symptoms—was harmless as to the initial-onset claim. We
read the special master’s opinion denying Rule 60(b) relief
to have determined that the finding of pre-vaccination on-
set rested independently on the pre-vaccination medical
records and expert testimony based on those records.
There has been no adequate showing that correcting the
asserted timing mistake about post-vaccination symptom
manifestation could reasonably have altered the determi-
nation based on the pre-vaccination records. We therefore
affirm the denial of reopening of the initial-onset claim.
We further hold, however, that Ms. DiMasi is entitled
to relief under Rule 60(b)(6) on her second challenge in the
extraordinary circumstances of this case. Ms. DiMasi’s
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4 DIMASI v. HHS
then-counsel disclaimed any significant-aggravation claim
without securing consent from his client, despite the spe-
cial master’s sua sponte order calling for briefing on signif-
icant aggravation and identifying the evidence of pre-
vaccination existence of the conditions at issue that made
a significant-aggravation claim possibly of crucial im-
portance to Ms. DiMasi receiving any compensation. Later,
after the adverse judgment, then-counsel told Ms. DiMasi
that the special master had effectively rejected a signifi-
cant-aggravation claim on the merits, even though such a
claim was never asserted or adjudicated. We deem this
combination of facts to constitute circumstances that are
among the rare ones in which the client is not bound by a
choice of counsel. We therefore partly reverse the denial of
Ms. DiMasi’s motion for relief from judgment, and we re-
mand the case for further proceedings limited to setting
aside the underlying judgment to permit assertion and ad-
judication of a significant-aggravation claim. 1
I
A
Before receiving the 2012 vaccination, Ms. DiMasi re-
ported experiencing cardiac and neurological symptoms.
For example, on March 19, 2008, Ms. DiMasi was admitted
to the hospital, reporting “near syncope and premature
ventricular contractions.” Appx. 22. 2 Later, in August
2009, Ms. DiMasi visited neurologist Dr. Fischer, who rec-
orded that she “peripheral neuropathy, palpitations, prem-
ature ventricular contractions, and migraine headaches.”
1 The court thanks appointed amici for commendably
developing the assigned position in briefs and at oral argu-
ment.
2 “Appx.” refers to the Corrected Appendix, Fed. Cir.
Dkt. No. 24. “SAppx.” refers to the Corrected Confidential
Joint Supplemental Appendix, Fed. Cir. Dkt. No. 69.
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DIMASI v. HHS 5
Id. Ms. DiMasi was again admitted to the hospital in No-
vember 2009 for “near syncope.” Id. Two years later, after
receiving a flu vaccine in 2011, she reported “mild tachy-
cardia, lightheadedness, and dizziness for 30 minutes.” Id.
And at a follow-up appointment with Dr. Fischer in April
2012, Ms. DiMasi reported feeling “‘intermittent tingling
behind her knees and upper calves, particularly when she
sits for prolonged periods of time.’” Appx. 23.
On December 4, 2012, Ms. DiMasi received the flu vac-
cine relevant to this litigation. Id. The next day, she vis-
ited her primary-care provider, Dr. Sen, complaining of
“some tachycardia and and a ‘weird’ sense of throat tight-
ening.” Id. Dr. Sen, noting that Ms. DiMasi had a “history
of premature ventricular contractions” and that her cur-
rent EKG showed different results, “transferred [her] to
the hospital via ambulance for further testing.” Id. She
was discharged the following morning with a diagnosis of
tachycardia, but Ms. DiMasi returned to the hospital on
December 8, 2012, “complaining of neurological symptoms
in her left leg.” Id. She was then discharged “with a diag-
nosis of elevated blood pressure.” Id. Two days later, Ms.
DiMasi returned to Dr. Sen, reporting “dizziness, left leg
neurological symptoms, weakness, and palpitations.” Id.
On December 19, 2012, Ms. DiMasi saw neurologist Dr.
Chen, who noted in his record of the visit that, “[i]mmedi-
ately after the [2012] flu shot[,] she had a sensation of diz-
ziness, tachycardia, shakiness, generalized weakness and
tingling behind the right knee.” Appx. 24. Dr. Chen opined
in that record that “it [is] ‘hard to explain what could cause
such a rapid response.’” Id. Ms. DiMasi followed-up with
Dr. Fischer on December 27, 2012, where she reported, ac-
cording to Dr. Fischer’s notes, “an ‘immediate response’ af-
ter the vaccination, ‘within a few minutes,’ of a rapid heart
rate, dizziness, tingling and numbness rising from left leg
up her back.” Id. Dr. Fischer was likewise puzzled by Ms.
DiMasi’s presentation, stating that, “given the unilateral
nature of the symptoms, it is somewhat difficult to
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6 DIMASI v. HHS
understand how the injection could result in these symp-
toms.” Id.
Ms. DiMasi continued to seek treatment for several
years, with medical providers providing various diagnoses.
Appx. 24–25. The record before this court, from the Rule
60(b) proceedings, contains Ms. DiMasi’s statement that,
in the 18 months following her 2012 vaccination, she vis-
ited medical providers 72 different times, a far higher rate
than before the vaccination. See Amicus Br. at 11; SAppx.
217. It also contains Ms. DiMasi’s description of how her
“life . . . changed” significantly after the vaccination. Ami-
cus Br. at 16 n.5; SAppx. 184–85.
B
1
On December 2, 2015, just under three years after her
2012 vaccination, Ms. DiMasi, through her then-counsel,
filed a Vaccine Act petition for compensation in the Claims
Court, alleging injuries caused by the 2012 flu vaccine. Un-
der the statute, Ms. DiMasi’s petition was referred to a spe-
cial master for adjudication of whether she was entitled to
compensation, 42 U.S.C. § 300aa-12(d)(3), with review
available in the Claims Court, see id. § 300aa-12(e), and
then in this court, see id. § 300aa-12(f); 28 U.S.C.
§ 1295(a)(3). The special master identified the (agreed on)
conditions at issue as small fiber neuropathy, with related
postural orthostatic tachycardia syndrome (POTS) and
mild autonomic failure (plus baroreflex failure). Appx. 25.
That characterization (like the shorthand, “small fiber neu-
ropathy and POTS,” Appx. 27; see Appx. 25 & n.5) is not
subject to material dispute here.
As now relevant, although influenza vaccines are listed
in the vaccine injury table—a compilation of specified vac-
cines and specified corresponding medical conditions, see
42 U.S.C. § 300aa-14(a); 42 C.F.R. § 100.3(a)—the condi-
tions at issue for Ms. DiMasi are not listed in the table for
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DIMASI v. HHS 7
her flu vaccine. 42 C.F.R. § 100.3(a)(XIV) (listing anaphy-
laxis, within four hours of vaccine administration; shoulder
injury, within 48 hours; vasovagal syncope, within one
hour; and Guillain-Barré Syndrome, between 3 and 42
days). For her asserted non-table conditions, Ms. DiMasi
therefore had to show, by a preponderance of the evidence,
that the vaccine either “caused” or “significantly aggra-
vated” the conditions. 42 U.S.C. § 300aa-11(c)(1)(C)(ii); see
W.C. v. Secretary of Health & Human Services, 704 F.3d
1352, 1357 (Fed. Cir. 2013); Sharpe v. Secretary of Health
& Human Services, 964 F.3d 1072, 1078 (Fed. Cir. 2020).
“Significant aggravation” is as “any change for the worse in
a pre[-]existing condition which results in markedly
greater disability, pain, or illness accompanied by substan-
tial deterioration of health.” 42 U.S.C. § 300aa-33(4); see
Locane v. Secretary of Health & Human Services, 685 F.3d
1375, 1379 (Fed. Cir. 2012).
On September 19, 2016, the Secretary filed a report un-
der the Claims Court’s Vaccine Rule 4(c) recommending
against compensation, citing both Ms. DiMasi’s pre-vac-
cination medical records and post-vaccination records to re-
ject the petition’s assertion of causation by the 2012
vaccination. Appx. 25; see SAppx. 5–13. Expert reports
followed. In a March 2017 report, Ms. DiMasi’s expert, Dr.
Kinsbourne, “concluded that the influenza vaccine caused
Ms. DiMasi to develop small fiber neuropathy within a
day,” without addressing “Ms. DiMasi’s pre-vaccination
medical history that was discussed in the” Secretary’s Sep-
tember 2016 report, Appx. 25; SAppx. 17–26, though he
later addressed the pre-vaccination medical history in May
2018, Appx. 26; SAppx. 38–40, when responding to the in-
tervening reports of the Secretary’s expert, Dr. Leist, in Oc-
tober 2017 and January 2018, Appx. 25–26; SAppx. 27–37.
“Dr. Leist detailed Ms. DiMasi’s pre-vaccination history
back to 2008 noting recurring episodes of syncope/near syn-
cope, palpitations, and tachycardia” and “concluded that
Ms. DiMasi had small fiber neuropathy prior to the
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8 DIMASI v. HHS
influence vaccination.” Appx. 25; SAppx. 27–28 (recount-
ing pre-vaccination records), 28–34 (recounting post-vac-
cination records, including Chen and Fisher records, but
continuing to 2016), 35 (paragraph drawing conclusion of
pre-vaccination small fiber neuropathy based on pre-vac-
cination records). That conclusion rejected the initial-onset
claim, and Dr. Leist added that he also “den[ied] that the
influenza vaccination significantly aggravated Ms. Di-
Masi’s pre-existing small fiber neuropathy.” Appx. 25–26;
see SAppx. 35, 37.
On October 3, 2018, Ms. DiMasi’s counsel requested
an adjudication on the existing record, without oral testi-
mony, and the next day, the special master issued an order
to “guide the parties” in the briefs they agreed to file.
SAppx. 41; Appx. 26; Amicus Br. at 16. In that order, the
special master, based on Dr. Leist’s opinions that Ms. Di-
Masi’s small fiber neuropathy pre-existed the vaccination
and that the vaccination did not significantly aggravate the
condition, informed the parties that they “should address
all the elements of a significant[-]aggravation case.” Ami-
cus Br. at 16–17; see SAppx. 43. The special master stated
the elements of a significant-aggravation claim and “pro-
vided specific guidance on how each element should be ad-
dressed.” Amicus Br. at 17; SAppx. 43–48.
Nevertheless, when counsel, on November 5, 2018,
filed the scheduled brief urging a ruling on the record for
Ms. DiMasi, he did not present or mention a significant-
aggravation claim, arguing only the initial-onset claim, i.e.,
that the 2012 vaccine itself caused the conditions at issue.
SAppx. 49–64. In a response filed March 4, 2019, the Sec-
retary observed that “a discussion of [a significant-aggra-
vation] claim is . . . relevant to this case,” SAppx. 75, and
addressed the issue on the merits, SAppx. 75–81, though a
full record had not been made on such a claim. On July 7,
2019, Ms. DiMasi, through counsel, filed an amended mo-
tion for a ruling on the record that her neuropathy and
POTS “were ‘caused-in-fact’ by her [2012] flu vaccination.”
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DIMASI v. HHS 9
SAppx. 84. In the amended motion, counsel expressly dis-
claimed a significant-aggravation claim, stating: “[Ms. Di-
Masi] does not allege a significant[-]aggravation claim in
her [p]etition.” SAppx. 104; Amicus Br. at 17.
On November 7, 2019, the special master denied Ms.
DiMasi’s petition for compensation. DiMasi v. Secretary of
Health & Human Services, No. 15-1455V, 2019 WL
6878732 (Fed. Cl. Nov. 7, 2019); Appx. 21. The special mas-
ter first noted that, because Ms. DiMasi “d[id] not allege a
significant[-]aggravation claim,” Appx. 21, the only dispute
was “when Ms. DiMasi first developed [her] conditions,”
Appx. 27. The special master then found
that the evidence supports Ms. DiMasi having
symptoms related to her small fiber neuropathy
and POTS before the . . . 2012 influenza vaccina-
tion. The presence of problems before [the] vac-
cination could serve as a predicate for an
alternative cause of action—that the vaccination
significantly aggravated the pre-existing problem.
However, Ms. DiMasi [through counsel] explicitly
stated that she is not pursuing a significant[-]ag-
gravation claim. Thus, the undersigned will not
address whether Ms. DiMasi’s pre-existing symp-
toms worsened after the vaccination.
Appx. 29 (internal citation omitted).
Ms. DiMasi had 30 days to seek Claims Court review of
the special master’s ruling. See 42 U.S.C. § 300aa-12(e)(1).
On November 11, 2019, four days after the special master’s
decision, Ms. DiMasi’s counsel informed her of the decision.
Counsel stated that the special master “believed that . . .
the small fiber neuropathy . . . started before the [2012]
vaccination.” SAppx. 151. Even though the special master
did not decide significant aggravation, counsel also stated
that the special master “believed that . . . [t]he onset of the
tachycardia after the flu shot was too short to be the result
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10 DIMASI v. HHS
of a significant aggravation of small fiber neuropathy.” Id.;
Amicus Br. at 65.
The record reveals what was at least a failure of com-
munication between counsel and Ms. DiMasi regarding
whether to seek Claims Court review. See Appx. 197–99.
And counsel, believing that “filing a motion for review [in
the Claims Court] would have been inappropriate and
baseless,” Appx. 198, did not in fact seek Claims Court re-
view. Because no motion for review was filed, the Claims
Court entered final judgment on December 11, 2019, dis-
missing Ms. DiMasi’s petition for compensation. See 42
U.S.C. § 300aa-12(e)(3).
2
On September 15, 2020, well within one year of the fi-
nal judgment, Ms. DiMasi sent a letter (along with medical
records and other attachments) to the special master, re-
questing that she be allowed to proceed pro se and that her
case be reopened because of, among other things, deficien-
cies in her (now) former counsel’s representation. Appx.
31. Ms. DiMasi’s former counsel submitted a responsive
affidavit. Appx. 153–56. Ms. DiMasi, allowed to proceed
pro se, responded to her former counsel’s affidavit, the Sec-
retary opposed her request for reopening, and Ms. DiMasi
replied. See Appx. 181; SAppx. 142, 146. On June 3, 2021,
the special master denied Ms. DiMasi’s request to reopen
the case, treating it as a motion for relief from judgment
under Claims Court Rule 60(b). Appx. 157, 182. But when,
a few weeks later, Ms. DiMasi sought reconsideration, see
Appx. 172, 182; SAppx. 188, the special master vacated the
June 3 denial and requested supplemental briefing, Appx.
16, 182. Thereafter, the Secretary made a supplemental
filing, and Ms. DiMasi sought leave to file additional mate-
rial. Appx. 16 n.2, 82; SAppx. 211, 225.
Ms. DiMasi’s submissions seeking relief from the 2019
judgment presented several challenges, but only two of
them warrant discussion here, given the demanding
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DIMASI v. HHS 11
standards for Rule 60(b) relief. First, Ms. DiMasi asserted
the existence of a fundamental misunderstanding about
the facts regarding the precise timing of the emergence of
her symptoms evincing small fiber neuropathy and related
POTS, a misunderstanding that was based on asserted in-
accuracies in Drs. Chen’s and Fischer’s reports and that,
she alleged, infected her counsel’s submissions and, even-
tually, the special master’s rejection of the initial-onset
claim for compensation. See, e.g., Appx. 31. Second, Ms.
DiMasi sought relief from the judgment on the ground that
counsel had violated fundamental duties to her in disclaim-
ing an in-the-alternative significant-aggravation claim
without her informed consent, a claim that was never pre-
sented or adjudicated, despite the special master’s order
calling for it to be addressed. See, e.g., Appx. 32. 3
On November 10, 2021, the special master denied Ms.
DiMasi the requested relief. Appx. 178–203. The special
3 We have considered the other grounds that Ms. Di-
Masi raised in seeking Rule 60(b) relief, but we see no need
for further discussion of such grounds. For example, Ms.
DiMasi challenged her then-counsel’s decision not to seek
direct review by the Claims Court of the special master’s
November 11, 2019 decision denying compensation. The
special master rejected this challenge. Appx. 197–99. We
see no error in that rejection: Ms. DiMasi has not shown
how she could have obtained relief on direct review, which
would have been limited to the then-existing record and in-
itial-onset claim. Ms. DiMasi also unsuccessfully chal-
lenged the special master’s interpretation of the pre-
vaccination medical evidence itself, Appx. 192–93; see
Appx. 28, but we see no showing of error in that regard that
meets the demanding standards of Rule 60(b). To the ex-
tent that Ms. DiMasi has, in her present appeal, mentioned
other challenges she made before the special master, we
see no need for further discussion.
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12 DIMASI v. HHS
master rejected Ms. DiMasi’s challenge to the 2019 denial
of the initial-onset claim—the challenge focused on the as-
serted mistake regarding precisely when her pertinent
symptoms began after the 2012 vaccination (immediately
or after a few days)—pointing to the pre-vaccination medi-
cal records, and Dr. Leist’s testimony about them, as estab-
lishing pre-vaccination onset of the conditions at issue.
Appx. 194. The special master also rejected Ms. DiMasi’s
challenge to her former counsel’s decision not to raise a sig-
nificant-aggravation claim, concluding that counsel’s deci-
sion was “tactical” and properly within the scope of his
authority under the principles governing the attorney–cli-
ent relationship. Appx. 197.
On December 10, 2021, Ms. DiMasi timely filed a mo-
tion for review with the Claims Court. See 42 U.S.C.
§ 300aa-12(e)(1). The Claims Court denied the motion on
April 4, 2022, finding no reversible error in the special mas-
ter’s denial of Ms. DiMasi’s Rule 60(b) motion. See DiMasi
v. Secretary of Health & Human Services, No. 15-1455V,
2022 WL 1153477 (Fed. Cl. Apr. 4, 2022); Appx. 15.
C
Ms. DiMasi, still proceeding pro se, timely petitioned
this court for review, properly invoking our jurisdiction un-
der 28 U.S.C. § 1295(a)(3) and 42 U.S.C. § 300aa-12(f). On
December 19, 2022, we issued an order indicating the need
for additional assistance in resolving the appeal. Fed. Cir.
Dkt. 37. We appointed amici on January 3, 2023, and pro-
ceeded to receive a new, full round of briefs and oral argu-
ment from amici counsel and counsel for the Secretary,
which provided the desired assistance.
II
Under the Vaccine Act, we review a decision of the spe-
cial master, where that decision has been sustained by the
Claims Court (as here), “under the same standard” that the
Claims Court uses. Rodriguez v. Secretary of Health &
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DIMASI v. HHS 13
Human Services, 632 F.3d 1381, 1383–84 (Fed. Cir. 2011).
Specifically, we must set aside the decision if it is “arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 42 U.S.C. § 300aa-12(e)(2)(B); see
Avera v. Secretary of Health & Human Services, 515 F.3d
1343, 1347 (Fed. Cir. 2008).
We review here not the special master’s November
2019 denial of compensation but the special master’s No-
vember 2021 decision to deny relief from judgment under
Claims Court Rule 60(b), applying standards elaborated in
cases interpreting the identical Rule 60(b) of the Federal
Rules of Civil Procedure (which governs in district courts).
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)). “The grant or denial of a motion for relief from judg-
ment is discretionary, and the standard of review therefore
is whether the trial court abused its discretion.” Sioux
Tribe of Indians v. United States, 862 F.2d 275, 279 (Fed.
Cir. 1988) (quoting United States v. Atkinson, 748 F.2d
659, 660 (Fed. Cir. 1984)). “A court abuses its discretion
when (1) its decision is clearly unreasonable, arbitrary or
fanciful; (2) the decision is based upon an erroneous con-
struction of the law; (3) its factual findings are clearly er-
roneous; or (4) the record contains no evidence upon which
the [trial] court could have rationally based its decision.”
Shell Oil Co. v. United States, 896 F.3d 1299, 1306–07 (Fed.
Cir. 2018) (internal quotation marks omitted) (alteration in
original).
Rule 60(b) identifies several “grounds for relief from a
final judgment, order, or proceeding.” Claims Court Rule
60(b) (capitalization removed). Specifically, Rule 60(b) pro-
vides, in relevant part:
On motion and just terms, the court may relieve a
party or its legal representative from a final
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14 DIMASI v. HHS
judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or ex-
cusable neglect;
. . . or
(6) any other reason that justifies relief.
Id. We address the two challenges that we have described,
one of which falls under Rule 60(b)(1), the other under
60(b)(6). 4
A
As relevant to Ms. DiMasi’s first claim, Rule 60(b)(1)
authorizes relief from judgment for a “mistake.” A “mis-
take,” the Supreme Court has held, is a “factual misconcep-
tion or misunderstanding” or an “error of law or fact,”
whether by a party or by the court. Kemp v. United States,
142 S. Ct. 1856, 1862 (2022) (cleaned up). Here, we note
4 A motion for relief under Rule 60(b) must be made
within a reasonable time, which for grounds (1)–(3) may
not exceed one year. Claims Court Rule 60(c)(1). Here, Ms.
DiMasi filed her first letter requesting that her case be re-
opened on September 15, 2020, within one year of the De-
cember 11, 2019 judgment. The special master nowhere
found that Ms. DiMasi failed to make her Rule 60(b) filing
within a reasonable time. Nor did the Secretary argue un-
timeliness in opposing the Rule 60(b) motion. SAppx. 142–
45 (Oct. 7, 2020); see also Claims Court No. 15-w-1455, Dkt.
120 (July 19, 2021) (Secretary’s response to Ms. DiMasi’s
motion for leave to file additional materials). An untimeli-
ness objection is therefore forfeited. Moreover, when the
Secretary asserted untimeliness in one paragraph of his
supplemental brief here, he limited the assertion to the
Rule 60(b)(1) challenge regarding the initial-onset claim,
Sec’y Supp. Br. at 43, which we reject for other reasons.
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DIMASI v. HHS 15
only that Ms. DiMasi and amici have offered substantial
support, including contemporaneous medical records, for
the contention that a mistake was made (at least by coun-
sel and the special master) regarding the precise timing of
the manifestation of pertinent symptoms after the Decem-
ber 4, 2012 vaccination—specifically, that the reports of
Drs. Chen and Fischer mistakenly state that Ms. DiMasi
first experienced her relevant post-vaccination symptoms
immediately or within minutes of the vaccination, rather
than approximately four days later. See Amicus Br. at 43–
47 (summarizing evidence); SAppx. 139–41.
But we need not and do not go further to decide the
merits of that contention. Even when there is a “mistake,”
Rule 60(b) provides only that a court “may” grant relief
from judgment, making the grant “discretionary,” Sioux
Tribe, 862 F.2d at 279. In the balance of finality and cor-
rectness policies built into Rule 60(b), 11 Charles A. Wright
& Arthur R. Miller, Federal Practice & Procedure § 2851
(3d ed. updated Apr. 2023) (“The rule attempts to strike a
proper balance between the conflicting principles that liti-
gation must be brought to an end and that justice should
be done.”), the potential that the judgment sought to be set
aside would have been different but for the later-asserted
error is a key consideration in exercising the discretion
granted by the rule, id. § 2857 (“Relief will not be given if
substantial rights of the moving party have not been
harmed by the judgment.”), a conclusion reinforced by the
command of Rule 61 to apply a principle of harmless error,
see Claims Court Rule 61 (providing that, “[u]nless justice
requires otherwise, no error in admitting or excluding evi-
dence, or any other error by the court or a party—is ground
for . . . disturbing a judgment” and that the tribunal “must
disregard all errors and defects that do not affect any
party’s substantial rights”); Shinseki v. Sanders, 556 U.S.
396, 406–08 (2009); Wright & Miller § 2883. We have been
pointed to no authority forbidding the tribunal to deny re-
lief when accepting the asserted ground for Rule 60(b)
Case: 22-1854 Document: 73 Page: 16 Filed: 07/24/2023
16 DIMASI v. HHS
relief (here, a mistake) is not shown to have a reasonable
chance of altering the judgment from which relief is sought.
See, e.g., Dobyns v. United States, 915 F.3d 733, 738 (Fed.
Cir. 2019) (citing Murray v. District of Columbia, 52 F.3d
353, 355 (D.C. Cir. 1995)).
That showing has not been made here for the judgment
rejecting the initial-onset claim. In denying Rule 60(b) re-
lief, the special master, after noting the dispute about the
timing of post-vaccination symptoms, immediately ex-
plained that he had “ultimately found that symptoms re-
lated to Ms. DiMasi’s small fiber neuropathy and POTS
began prior to her December 4, 2012 influenza vaccination”
and that finding “was based on medical records and the tes-
timony of [the Secretary’s] expert, Dr. Leist, who opined
that Ms. DiMasi’s pre-vaccination history . . . were sugges-
tive of pre-vaccination POTS and small fiber neuropathy.”
Appx. 194. The fairest understanding of that explanation
is that the November 2019 finding about initial onset
rested independently on the pre-vaccination records. That
is enough to reject Ms. DiMasi’s request for Rule 60(b) re-
lief regarding the initial-onset claim, without deciding—
what various precedents suggest may be the case here—
that counsel’s framing of the arguments and evidence re-
lated to the onset of symptoms amounts to a strategic liti-
gation decision that is not grounds for relief under Rule
60(b)(1). U.S. Commodity Futures Trading Comm’n v.
Kratville, 796 F.3d 873, 896 (8th Cir. 2015) (stating Rule
60(b)(1) “does not permit litigants and their counsel to
evade the consequences of their legal positions and litiga-
tion strategies, even though these might prove unsuccess-
ful, ill-advised, or even flatly erroneous”); Cashner v.
Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996) (“We
also have held that Rule 60(b)(1) is not available to allow a
party merely to reargue an issue previously addressed by
the court when the reargument merely advances new ar-
guments or supporting facts which were available for
presentation at the time of the original argument.”);
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DIMASI v. HHS 17
McCurry ex rel. Turner v. Adventist Health System/Sun-
belt, Inc., 298 F.3d 586, 595 (6th Cir. 2002) (holding “that
out-and-out lawyer blunders—the type of action or inaction
that leads to successful malpractice suits by the injured cli-
ent—do not qualify as ‘mistake’ or ‘excusable neglect’
within the meaning of Rule 60(b)(1)” (citation omitted));
Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999)
(“[A] party who simply misunderstands or fails to predict
the legal consequences of his deliberate acts cannot later,
once the lesson is learned, turn back the clock to undo those
mistakes.” (citation omitted)).
The special master did not abuse his discretion in mak-
ing the determination we deem decisive on the initial-onset
claim. The November 2019 opinion, while noting the tim-
ing statements in the records of Drs. Chen and Fischer, re-
lies centrally on the pre-vaccination records as interpreted
by Dr. Leist. Appx. 28–29. Dr. Leist’s opinion, while noting
the Chen/Fisher records as part of the extensive summary
of medical records from 2008 to 2016, SAppx. 29, 34, 36, is
readily understood as likewise relying centrally on the pre-
vaccination records when drawing its conclusion about ini-
tial onset. SAppx. 35. And notably, neither Ms. DiMasi
nor amici have set forth a persuasive concrete explanation
of just how acceptance of a four-day delay in pertinent
symptoms after the December 4, 2012 vaccination would
undermine Dr. Leist’s and the special master’s interpreta-
tion of the pre-vaccination records. See Amicus Reply Br.
at 21. In these circumstances, we affirm the special mas-
ter’s rejection of the Rule 60(b) challenge to the denial of
the initial-onset claim. 5
5 In finding it unnecessary to resolve the dispute
about the timing of manifestation of pertinent symptoms
after the vaccination for purposes of the initial-onset claim,
we do not preclude the special master from considering
whether to resolve the timing dispute, on an appropriate
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18 DIMASI v. HHS
B
We draw a different conclusion about Ms. DiMasi’s ar-
gument for setting aside the 2019 judgment denying com-
pensation so that she may present a significant-
aggravation claim and have it duly adjudicated. In the spe-
cific circumstances established on the Rule 60(b) record ac-
tually made, we conclude that Ms. DiMasi is not bound by
her then-counsel’s disclaimer of a significant-aggravation
claim. Whatever a differently developed record might have
shown, the facts before the special master, taken together,
met the demanding, extraordinary-circumstances stand-
ard for relief under Rule 60(b)(6). We hold that it was an
abuse of discretion for the special master to decline to set
aside the 2019 judgment to permit adjudication of a signif-
icant-aggravation claim in this case.
1
Rule 60(b)(6) authorizes the court to relieve a party
from a judgment for “any other reason that justifies relief.”
The Supreme Court has ruled that the provision “grants
federal courts broad authority . . . to vacate judgments
whenever such action is appropriate to accomplish justice,”
Liljeberg v. Health Services Acquisition Corp., 486 U.S.
847, 863–84 (1988) (quoting Klaprott v. United States, 335
U.S. 601, 614–15 (1949)), while also making clear im-
portant limits on when such relief is appropriate given the
structure of Rule 60(b) and the strength of systemic finality
interests: Rule 60(b)(6) may be successfully invoked “only
when Rules 60(b)(1) through (b)(5) are inapplicable,” Kemp,
142 S. Ct. at 1861, and, even then, only in “extraordinary
circumstances,” Liljeberg, 486 U.S. at 864 (quoting Acker-
mann v. United States, 340 U.S. 193, 199–200 (1950));
record, if doing so is material to an adjudication of the sig-
nificant-aggravation claim (which we next hold to be re-
quired).
Case: 22-1854 Document: 73 Page: 19 Filed: 07/24/2023
DIMASI v. HHS 19
Pioneer Investment Services Co. v. Brunswick Associates
Ltd. Partnership, 507 U.S. 380, 393 (1993); see Progressive
Industries, 888 F.3d at 1255; Information Systems, 994
F.2d at 795–96. The first limit—the exclusion from (b)(6)
of what is covered by (b)(1)–(5)—is not at issue here.
Whether this case involves the required extraordinary
(equivalently, exceptional) circumstances is.
Courts in rare cases have found extraordinary circum-
stances to exist “when there is gross neglect by counsel and
an absence of neglect by the party.” 11 Wright & Miller
§ 2864 & n.50; see, e.g., Mackey v. Hoffman, 682 F.3d 1247,
1251 (9th Cir. 2012) (“Gross negligence by counsel amount-
ing to virtual abandonment can be an extraordinary cir-
cumstance that justifies vacating a default judgment
pursuant to Rule 60(b)(6).” (cleaned up) (quoting Commu-
nity Dental Services v. Tani, 282 F.3d 1164, 1169–71 (9th
Cir. 2002))); Lal v. California, 610 F.3d 518, 521 (9th Cir.
2010) (“[A]n attorney’s gross negligence constitutes an ex-
traordinary circumstance warranting relief from a judg-
ment . . . .”); Boughner v. Secretary of Health, Education &
Welfare, 572 F.2d 976, 978 n.9 (3d Cir. 1978) (“Gross ne-
glect . . . by [an] attorney . . . constitute[s] [an] extraordi-
nary circumstance[] permitting relief from a judgment
under Rule 60(b)(6).” (citing Lucas v. City of Juneau, 20
F.R.D. 407 (D. Alaska 1957))); Jackson v. Washington
Monthly Co., 569 F.2d 119, 122 (D.C. Cir. 1977) (“We in this
circuit have held that so serious a dereliction by an attor-
ney, when unaccompanied by a similar default by the cli-
ent, may furnish a basis for relief under Rule 60(b)(6).”
(footnotes omitted)).
We need not and do not draw a conclusion about all
gross negligence. Rather, it is enough that some attorney
conduct so characterized can support a determination of ex-
traordinary circumstances in which the client “may not be
held accountable for his attorney’s [gross] misconduct.”
Tani, 282 F.3d at 1172. Such circumstances are rare, given
the systemically important general rule that, in “our
Case: 22-1854 Document: 73 Page: 20 Filed: 07/24/2023
20 DIMASI v. HHS
system of representative litigation, . . . each party is
deemed bound by the acts of his lawyer–agent.” Pioneer,
507 U.S. at 397 (quoting Link v. Wabash Railroad Co., 370
U.S. 626, 634 (1962)); see also Restatement 3d Law Gov-
erning Lawyers § 27 cmt. c (2000) (updated May 2023)
(stating the general rule that, “[b]y retaining a lawyer, a
client implies that the lawyer is authorized to act for the
client in matters relating to the representation”). But the
general rule rests on the principles, founded in agency law,
that govern the “normal attorney–client relationship,” and
in some circumstances those principles “do[] not bar Rule
60(b) relief when ‘the evidence is clear that the attorney
and [the] client were not acting as one,’” Tani, 282 F.3d at
1169 (quoting Primbs v. United States, 4 Cl. Ct. 366, 370
(1984)).
One such circumstance may be present when the evi-
dence establishes that counsel has abandoned the client’s
“substantial rights” without actual authority by settling an
important claim or taking an action comparable to such a
settlement without adequate consultation with the client.
Pueblo of Santo Domingo v. United States, 647 F.2d 1087,
1088, (Ct. Cl. 1981); see Amin v. Merit Systems Protection
Board, 951 F.2d 1247, 1254 (Fed. Cir. 1991); Bradford Ex-
change v. Trein’s Exchange, 600 F.2d 99, 102 (7th Cir.
1979); Restatement 3d Law Governing Lawyers § 22 cmts.
d & e, § 27 cmt. d (2000) (updated May 2023); id. § 20 (duty
of consultation with client concerning certain decisions).
Such an exception to the general rule does not apply in
common situations in which a claim is dropped or dis-
claimed—for example (not to be exhaustive) when one
claim among several claims with largely duplicative key
facts and chances of success is abandoned as a reasonable
strategic choice for streamlining a case. But we conclude
that the exception does apply in the circumstances estab-
lished on this record in this case.
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DIMASI v. HHS 21
2
It is undisputed that counsel disclaimed a significant-
aggravation claim without consultation with or authoriza-
tion from his client. Ms. DiMasi asserts without contradic-
tion that counsel never told her about the availability of a
significant-aggravation claim, much less explained or ob-
tained approval for the choice not to present such a claim.
Amicus Reply Br. at 29; Appx. 31 (Rule 60(b) motion);
SAppx. 188 (Ms. DiMasi’s affidavit); SAppx. 160–61 (email
from Ms. DiMasi); Appx. 153–56 (counsel’s affidavit, no-
where asserting consultation with client about disclaiming
significant aggravation). On the facts here, counsel’s dis-
claimer creates an extraordinary circumstance.
Counsel’s disclaimer came at a time when the Secre-
tary had already disclosed expert opinion disputing an ini-
tial onset after the December 2012 vaccination. Initial
onset was a matter of expert interpretation and diagnosis,
not simply of Ms. DiMasi’s testimony as a percipient wit-
ness, so there was a clear risk of complete absence of recov-
ery if the initial-onset claim stood alone. A significant-
aggravation claim addressed a critically different basis for
recovery: worsening, rather than initial onset, of the condi-
tions at issue. And, strikingly, the special master himself,
pointing to the expert evidence, had expressly called for the
parties to address significant aggravation. See supra pp.
7–9.
If there is reasonable explanation for that abandon-
ment here, it has not been presented. No persuasive expla-
nation has been offered here for why a commonplace
pleading in the alternative would have, for example, cre-
ated a self-defeating contradiction. See, e.g., Locane, 685
F.3d at 1379, 1381 (describing presentation of initial-onset
and significant-aggravation claims “in the alternative”).
Specifically, no such explanation has been offered for why
Ms. DiMasi, without falsity or impairment of credibility,
could not have said that, while she stands by her account
Case: 22-1854 Document: 73 Page: 22 Filed: 07/24/2023
22 DIMASI v. HHS
of what symptoms she had pre-vaccination and even her
own interpretation of those symptoms, she understands
that Dr. Leist interprets the pre-vaccination records differ-
ently and even if his inference of initial onset pre-vaccina-
tion is right (though she thinks it is not), certainly her
condition got significantly worse post-vaccination. More
specifically still, no persuasive explanation has been of-
fered for the failure of counsel to have explained the fore-
going to Ms. DiMasi, giving her the choice of risking all on
an already-disputed initial-onset claim or pleading signifi-
cant aggravation in the alternative. 6 The special master
clearly saw the availability of a significant-aggravation
claim, when calling for such a claim to be addressed,
SAppx. 43–47, and, later, when denying the initial-onset
claim, Appx. 29, as quoted at supra p. 9.
Yet counsel abandoned any significant aggravation
claim without client consultation or consent. And after the
loss on the initial-onset claim, counsel told Ms. DiMasi that
the special master “believed that . . . [t]he onset of the tach-
ycardia after the flu shot was too short to be the result of a
significant aggravation of small fiber neuropathy.” SAppx.
151; Amicus Br. at 65. No basis for that assertion to Ms.
DiMasi has been identified. In fact, the special master
stated at the end of his November 2019 opinion rejecting
the initial-onset claim that, because “Ms. DiMasi explicitly
stated that she is not pursuing a significant aggravation
6 If counsel thought that the needed choice was
about whether to try simply to set the historical record
straight even while sacrificing compensation, such a (here
implausible) choice would be one about the client’s “objec-
tives,” which is a choice reserved to the client. See, e.g.,
Restatement 3d Law Governing Lawyers § 16(1); id. cmt. c
(“The client, not the lawyer, determines the goals to be pur-
sued . . . .”); ABA Model Rule of Professional Conduct
1.2(a).
Case: 22-1854 Document: 73 Page: 23 Filed: 07/24/2023
DIMASI v. HHS 23
claim,” he would “not address whether Ms. DiMasi’s pre-
existing symptoms worsened after the vaccination.” Appx.
29 (emphasis added).
In these unusual circumstances, we conclude that
there was a particular kind of gross negligence that makes
it clearly unreasonable to bind Ms. DiMasi to counsel’s
choice to disclaim the potentially critical significant-aggra-
vation claim for compensation. Our conclusion relies on
the aggregate of facts discussed and does not extend fur-
ther. The special master’s denial of Rule 60(b)(6) relief re-
garding significant aggravation was an abuse of discretion.
III
For the foregoing reasons, we hold that the special
master did not abuse his discretion in denying Rule 60(b)
relief from the December 2019 judgment to revive the ini-
tial-onset claim but did abuse his discretion in denying
Rule 60(b) relief from the December 2019 judgment to al-
low presentation and adjudication of a significant-aggrava-
tion claim. We affirm the judgment now before us in part,
reverse it in part, and remand the case for further proceed-
ings, consistent with this opinion, to permit presentation
and adjudication of a significant-aggravation claim.
Costs to Ms. DiMasi.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED