Blake v. Hhs

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 03-0031V
Filed: September 11, 2014

********************************
THOMAS J. BLAKE, and *
PAMELA L. BLAKE, legal representatives *
of a minor child, W.J.B., *
*
Petitioners, * Motion for Reconsideration;
v. * Motion for Relief from Judgment;
* Decision Filing Date; Vaccine
SECRETARY OF HEALTH * Rule 10; Vaccine Rule 36;
AND HUMAN SERVICES, * RCFC 59; RCFC 60;
*
Respondent. *
*
********************************

Michael L. Cave, Cave Law Firm, Baton Rouge, LA, for petitioners.
Voris E. Johnson, Jr., U.S. Department of Justice, Washington, DC, for respondent.

RULING DENYING PETITIONERS’ MOTION FOR RECONSIDERATION AND
MOTION FOR POST-JUDGMENT RELIEF1

Vowell, Chief Special Master:

On July 9, 2014, petitioners filed a motion requesting various forms of relief from
my decision dismissing their claim and the subsequent judgment. Specifically,
petitioners moved for reconsideration of my May 21, 2014 Decision and June 18, 2014
“Public Decision” pursuant to Vaccine Rule 10(e). Petitioners’ Motions [“Pet. Motions”]
at 1. They also moved “for Post-Judgment Relief from the court’s June 23, 2014
Judgment” pursuant to Vaccine Rule 36 and Rule 60 of the Rules of the United States
Court of Federal Claims [“RCFC”]. Id. Finally, they requested that “the Decision date
be declared to be the date of the Public Decision of June 18, 2014.” Id. at 4. Although
not required, respondent filed a written response to petitioners’ motions on July 16,
2014.

1
Because this unpublished ruling contains a reasoned explanation for the action in this case, I intend to
post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act
of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). In accordance with Vaccine Rule
18(b), petitioners have 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified
material fits within this definition, I will redact such material from public access.
 On July 17, 2014, petitioners filed a motion for review with the U.S. Court of
Federal Claims. The case was assigned to Judge Horn, who, on August 8, 2014,
stayed respondent’s response to the motion for review and remanded the case to me to
rule on petitioners’ July 9, 2014 motions.

For the reasons discussed below, petitioners’ motions are DENIED.

I. Relevant Procedural History.2

Petitioners filed their claim on January 7, 2003. It was included in the Omnibus
Autism Proceeding [“OAP”] and effectively stayed while general causation issues were
litigated in the OAP test cases. Following resolution of the OAP test cases, petitioners
filed an amended petition alleging that W.J.B. suffered the Table injury3 of
encephalopathy following receipt of the measles, mumps, and rubella [“MMR”] vaccine.
Amended Petition, filed Sept. 14, 2011, at 1.

On October 5, 2011, the special master formerly assigned to this case held a
status conference with the parties. During the call, she noted the “potential difficulty
associated with characterizing symptoms that commonly manifest as symptoms of
autism as symptoms that are indicative of an acute encephalopathy.” Order, issued
Oct. 5, 2011, at 1. On numerous occasions over the next year, she discussed her
concerns regarding petitioners’ claim. See, e.g., Order, issued Feb. 15, 2012, at 1-4.

To resolve issues pertaining to the factual basis for petitioners’ claim, the former
special master held a fact hearing on November 14, 2012. Thereafter, she concluded
there was insufficient evidence to demonstrate that W.J.B. had experienced a Table
encephalopathy. Order, issued Jan. 23, 2013, at 2-3. She indicated petitioners could
file either a motion for a decision dismissing their claim or a motion for a decision on the
record. Id. at 3.

The case was reassigned to me on March 8, 2013. Shortly thereafter, on April 4,
2013, petitioners filed a motion for a decision on the record. In their motion, petitioners
asserted for the first time that they had proven actual causation, in addition to the Table
injury claim asserted in the amended petition. Petitioners’ Motion for a Decision on the
Record at 1; see also Blake, 2014 WL 2769979, at *1 n.3. Respondent filed a response
to petitioners’ motion on May 15, 2013. Petitioners filed a reply in early June 2013.

I initially issued my decision dismissing petitioners’ claim on May 20, 2014. The
filing of the decision was noted at docket entry #64 on May 20, 2014. The next day, I

2
A more complete discussion of the procedural history in this case can be found in my decision
dismissing petitioners’ claim. See Blake v. Sec’y, HHS, No. 03-31V, 2014 WL 2769979, at *1-5 (Fed. Cl.
Spec. Mstr. May 21, 2014). In this ruling, I will discuss only the portions which are relevant to the filing
date of that decision.
3
A “Table” injury is an injury listed on the Vaccine Injury Table, 42 C.F.R. § 100.3, corresponding to the
vaccine received within the time frame specified.

2
vacated the decision “in order to correct minor grammatical errors.” See Non-pdf Order,
issued May 21, 2014. I specifically indicated I was vacating the decision at docket entry
#64. Following that order, I filed the corrected version of the decision with the new filing
date, May 21, 2014. The filing of this corrected decision was noted at docket entry #65.

Under the modified process for posting decisions initiated by the court in
February 2014,4 the public version of the decision was issued at docket entry #66 on
June 18, 2014. The docket text and decision both indicated that the decision was filed
on May 21, 2014.

Judgment entered on June 23, 2014. That same day, petitioners’ counsel called
my law clerk seeking guidance on petitioners’ right to appeal. My law clerk declined to
give petitioners’ counsel legal advice, referring counsel to the Vaccine Rules and
“Guidelines for Practice under the NCVIP.” See Docket Entry for Informal
Communication dated June 24, 2014.

On July 9, 2014, petitioners filed the instant motions.

II. Legal Standards.

A. Law and Rules Pertaining to Post-Decision Relief.

The Vaccine Act provides that a party may file a motion for review of a decision
of a special master to the U.S. Court of Federal Claims. 42 U.S.C. § 300aa-12(e)(1).
The motion for review has a strict time limit; the motion must be filed within 30 days of
the filing date of the decision of the special master.

The Vaccine Rules, which can be found at Appendix B to the RCFC, govern all
Vaccine Act proceedings. Vaccine Rule 1(a). If a matter is not specifically addressed
by the Vaccine Rules, the special master of the court “may regulate the applicable
practice, consistent with these rules and with the purpose of the Vaccine Act, to decide
the case promptly and efficiently.” Vaccine Rule 1(b). “The RCFC apply only to the
extent they are consistent with the Vaccine Rules.” Vaccine Rule 1(c).

Post-decision relief may come in the form of a motion for review pursuant to
Vaccine Rule 23 or a motion for reconsideration pursuant to Vaccine Rule 10(e),
provided judgment has not entered. After judgment has entered, relief may be obtained
pursuant to Vaccine Rule 36 and RCFC 59 or 60.

4
In February 2014, the court modified the process employed when making decisions available to the
public in accordance with the E-Government Act of 2002. The parties still have 14 days to request any
redactions. Following that period, the public version of the decision is, as always, posted on the court’s
website. Under the new procedure, the public version of the decision is issued again on CM/ECF. The
docket text and decision itself indicate when the decision was filed.

3
B. Relief Prior to Entry of Judgment.

1. Motion for Review.

Any motion for review must be filed within 30 days of the date of the decision. 42
U.S.C. § 300aa-12(e)(1); Vaccine Rule 23(a). Extensions of time are not allowed and
“the failure of a party to file a motion for review in a timely manner will constitute a
waiver of the right to obtain review.” Vaccine Rule 23(b). The opposing party may file a
response to a motion for review within 30 days. 42 U.S.C. § 300aa-12(e)(1); Vaccine
Rule 25(a). Likewise, the failure to file a timely response will be viewed as a waiver of
that right. Vaccine Rule 25(b).

2. Motion for Reconsideration.

Any motion for reconsideration must be filed within 21 days of the date of the
decision. Vaccine Rule 10(e)(1). Of particular significance to this case, such motions
are prohibited after judgment has entered or a motion for review under Vaccine Rule 23
has been filed. Id. Although the special master may order the nonmoving party to file a
response (specifying the method and timing), a response is not required. Vaccine Rule
10(e)(2).

“The special master has the discretion to grant or deny the motion, in the interest
of justice.” Vaccine Rule 10(e)(3). Although what constitutes “in the interest of justice”
is not defined in the rule, decisions of special masters and judges of the U.S. Court of
Federal Claims provide guidance. The special master who issued the decision may
grant, deny, or take no action on any motion for reconsideration. See Vaccine Rule
10(e).

The filing of a motion for reconsideration does not toll the 30 day period for filing
a motion for review. Vaccine Rule 10(e)(3)(B). If the special master denies or fails to
act on a motion for reconsideration, the 30 day period still runs and judgment will enter
unless a motion for review is filed. Id. If no motion for review is filed, “the clerk will
enter judgment 30 days after the filing of . . . the special master’s decision.” Vaccine
Rule 11(a).

In Cedillo v. Sec’y, HHS, No. 98-916V, 2009 WL 996299, at *1 (Fed. Cl. Spec.
Mstr. Mar. 16, 2009), an OAP test case, the special master denied petitioners’ motion
for reconsideration because it was untimely filed and petitioners provided scant
justification for reconsidering the decision. The Federal Circuit affirmed the denial,
holding that the special master “did not abuse his discretion in declining to grant
reconsideration in view of evidence that was previously available and which did not in
fact support petitioners' position on the central issues.” Cedillo v. Sec’y, HHS, 617 F.3d
1328, 1348 (Fed. Cir. 2010).

I denied the identical motion for reconsideration in Snyder v. Sec’y, HHS, No. 01-
162V, 2009 WL 764611, at *1 (Fed. Cl. Spec. Mstr. Mar. 16, 2009), rev. denied, 88 Fed.
Cl. 706 (2009), finding that the motion was untimely filed and failed “to demonstrate that
4
the interest of justice would be served” by granting the motion. I observed that “[t]he
untimely filing of this motion for reconsideration, on the eve of the deadline for filing a
motion for review of my decision, suggest[ed] a thinly veiled effort by petitioners'
counsel to obtain additional time for filing their motion for review, while placing
additional evidence before the reviewing court.” Id.

In Doe/17 v. Sec’y, HHS, 84 Fed. Cl. 691, 704 (2008), another vaccine case, the
special master’s cursory denial of a motion for reconsideration was upheld because
“[n]othing in [the] documents [submitted in support of the motion] was compelling
evidence that would warrant reconsideration of his key findings of fact.” The judge
found no error in the special master’s failure to discuss the significance of each of the
motion’s attachments. Id.

C. Relief Following Judgment.

After judgment has entered, a party wishing to challenge the special master’s
decision must seek relief pursuant to Vaccine Rule 36. Vaccine Rule 36(a) allows a
party to file a motion for reconsideration pursuant to RCFC 59 or to seek relief from
judgment pursuant to RCFC 60. If the case was assigned to a judge for review, the
motion will be referred to the same judge. Vaccine Rule 36(a)(1). Otherwise, the
motion will be referred to the special master assigned to the case. Vaccine Rule
36(a)(2).5

RCFC 59 and 60 are identical to Rules 59 and 60 of the Federal Rules of Civil
Procedure [“FRCP”]. Thus, cases involving Rules 59 and 60, FRCP, are informative in
determining the meaning and intent of RCFC 59 and 60.

In determining whether a judgment should be set aside or altered, “the need for
finality of judgments” must be balanced against “the importance of ensuring that litigants
have a full and fair opportunity to litigate” when determining whether to grant relief.
Kennedy v. Sec’y, HHS, 99 Fed. Cl. 535, 539 (2011) (citing United Student Aid Funds,
Inc. v. Espinosa, 559 U.S. 260, 276 (2010); see also Bridgham by Libby v. Sec’y, HHS,
33 Fed. Cl. 101, 104 (1995) (discussing the “tension between the goals of ensuring that
the court’s judgment appropriately reflects the adjudication of the parties’ rights and of
providing the parties with certainty as to those rights”).

Rule 59 allows a judge or special master to reconsider all or some of the issues
in a case. RCFC 59(a)(1); Vaccine Rule 36(a)(2) (authorizing a special master to
consider motions for reconsideration filed under RCFC 59). The court may “open the
judgment if one has been entered, take additional testimony, amend findings of fact and
conclusions of law or make new ones, and direct the entry of a new judgment.” RCFC
59(b). With the exception of a motion based on “any fraud, wrong, or injustice . . . done

5
This sharing of authority over judgments between judge and special master was determined to be
appropriate since the Vaccine Rule 36 procedure allows for immediate review of the special master’s
ruling. Vessels v. Sec’y, HHS, 65 Fed. Cl. 563, 568 (2005).

5
to the United States,” a motion must be filed with 28 days of the date judgment entered.
RCFC 59(b).

Under RCFC 59(a), a motion for reconsideration may be granted only upon a
showing of: (1) an intervening change in the law, (2) newly available evidence, or (3) to
prevent a manifest injustice. Hall v. Sec’y, HHS, 93 Fed. Cl. 239, 251 (2010), aff’d, 640
F.3d 1351 (Fed. Cir.), cert. denied sub nom. Hall v. Sebelius, 132 S.Ct. 815 (2011); see
also, e.g., Matthews v. United States, 73 Fed. Cl. 524, 526 (2006).

“Manifest injustice” has been defined as an unfairness that is “clearly apparent or
obvious.” Ammex, Inc. v. United States, 52 Fed. Cl. 555, 557 (2002). When a decision
has been rendered on the merits of a claim, and there is no change in the law and no
newly discovered evidence, the bar for reconsideration is extraordinarily high. See Pac.
Gas & Elec. Co. v. United States, 74 Fed. Cl. 779, 785 (2006) (manifest injustice must
be so apparent as to be “almost indisputable”). As I indicated in an order in another
case, the “manifest injustice” standard of RCFC 59 is more stringent than the “interest of
justice” standard in Vaccine Rule 10(e). See Krakow v. Sec’y, HHS, No. 03-632V, 2010
WL 5572974, at *5 (Fed. Cl. Spec. Mstr. Nov. 12, 2010); see also Coleman v. Sec’y,
HHS, No. 06-710V, 2011 WL 6828475, at *5 (Fed. Cl. Spec. Mstr. Dec. 7, 2011).

“The decision whether to grant reconsideration lies largely within the discretion of
the . . . court.” Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir.
1990). A motion for reconsideration is not meant to provide an unsuccessful party the
opportunity to make arguments which have already been rejected. Froudi v. United
States, 22 Cl. Ct. 290, 300 (1991).

A motion for relief under RCFC 60(b) “seeks to set aside a final decision and it is
incumbent upon the motion-filer to demonstrate that he or she is entitled to that relief.”
Kennedy, 99 Fed. Cl. at 550. Relief from final judgment under RCFC 60 can be
obtained for the specific reasons listed in RCFC 60(b)(1)-(5) or the “catch all” provision
at RCFC 60(b)(6). The catch-all is a general provision which allows the vacating of a
judgment “whenever such action is appropriate to accomplish justice.” Klapprott v.
United States, 335 U.S. 601, 615 (1949). However, extraordinary circumstances must
warrant such relief. See Ackerman v. United States, 340 U.S. 193, 198 (1950) (denying
relief after finding the extraordinary circumstances in Klapprott did not exist). Moreover,
the catch-all provision should be used “only when the basis for relief does not fall within
any of the other subsections of Rule 60(b).” CNA Corp. v. United States, 83 Fed. Cl. 1,
8 (2008) (quoting Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d 1378, 1382 (Fed. Cir. 2002)).
“These clauses are . . . mutually exclusive . . . to prevent Rule 60(b)(6) from being used
to avoid the one-year limitation on motions that fall under the earlier clauses of the rule.”
Kennedy, 99 Fed. Cl. at 547-48 (citing Pioneer Inv. Servs., 507 U.S. 380, 393 (1993)).

In Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5th Cir. 1981), the court listed
eight factors important in determining whether relief under Rule 60(b) is warranted:

(1) [t]hat final judgments should not lightly be disturbed; (2) that the Rule
60(b) motion is not to be used as a substitute for appeal; (3) that the rule
6
 should be liberally construed in order to achieve substantial justice; (4)
whether the motion was made within a reasonable time; (5) whether, if the
judgment was a default or a dismissal in which there was no consideration
of the merits, the interest in deciding cases on the merits outweighs, in the
particular case, the interest in the finality of judgments, and there is merit
in the movant's claim or defense; (6) whether if the judgment was
rendered after a trial on the merits the movant had a fair opportunity to
present his claim or defense; (7) whether there are intervening equities
that would make it inequitable to grant relief; and (8) any other factors
relevant to the justice of the judgment under attack.

Seven Elves, 635 F.2d at 402 (emphasis added).

It is well settled that Rule 60(b) “cannot be employed to toll, extend, or waive the
time period in which to appeal.” Widdos v. Sec’y, HHS, 989 F.2d 1170, 1178 (Fed. Cir.
1993); accord Patton v. Sec’y, HHS, 25 F.3d 1021, 1028 (Fed. Cir. 1994); Waller v.
Sec’y, HHS, 76 Fed. Cl. 321, 324-25 (2005). “RCFC 60(b) may not be used to
circumvent the appellate process that Congress has established in the Vaccine Act.”
Vessels, 65 Fed. Cl. at 569.

In considering Rule 60(b) motions, courts also have weighed the merits of the
underlying claim in determining whether relief from judgment is appropriate. See, e.g.,
Curtis v. United States, 61 Fed. Cl. 511, 512 (2004) (“[A] litigant, as a precondition to
relief under Rule 60(b), must give the trial court reason to believe that vacating the
judgment will not be an empty exercise.”) (quoting Teamsters, Chauffeurs,
Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Inc., 953 F.2d 17,
20 (1st Cir. 1992)).

III. Evaluating Petitioners’ Motions.

Judgment entered on June 23, 2014. Petitioners have requested that I deem the
date of filing of the public decision in this case (June 18, 2014) the operative date for my
decision, thus rendering the judgment filed too soon. Pet. Motions at 4. This, in turn,
would provide a basis for their motion for relief from judgment, permitting me to consider
their motion for reconsideration pursuant to Vaccine Rule 10(e) timely filed.
Alternatively, they request relief from judgment under Vaccine Rule 36 and RCFC 60.
Id. at 1, 4.

Petitioners have not provided any information or evidence which would justify
reconsideration or relief from judgment. Their motions constitute an attempt to
circumvent the filing requirements of Vaccine Rule 23 and to extend the time available
for their motion for review. Petitioners are attempting an end run around the 30 day
period specified in Vaccine Rule 23 and 42 U.S.C. § 300aa-12(e)(1) of the Vaccine Act
for filing a motion for review.

In support of all the relief requested, petitioners’ counsel claims that he was led
astray by “confusing filings.” To the contrary, the facts are quite simple. My decision
7
dismissing petitioners’ claim was filed on May 20, 2014. Noting several grammatical
errors in the filed version of that decision, I withdrew it on May 21, 2014 and
immediately thereafter posted the corrected version of the decision.

In part, counsel’s confusion regarding the events of May 20 and 21 stems from
his belief that all events occurred on May 21, 2014. Pet. Motions at 2 (erroneously
indicating my first decision was issued on May 21, 2014). His belief is not based on
facts. The original decision was filed on May 20. Counsel’s assertion that all filings
occurred on May 21 within a few minutes of each other can be attributed only to his lack
of attention to detail. He simply failed to read the May 21 final decision.

Petitioners’ counsel clearly indicates that he saw the first decision issued, the
order vacating that decision, and the decision issued afterwards. Pet. Motions at 2.
Counsel would have received the electronic notification of the first decision on May 20.
Although counsel would have received electronic notifications for the order and
corrected decision within a few minutes of each other on May 21, the order which
indicated I was vacating the May 20, 2014 decision at docket entry #64 was issued first.
The correct decision was then issued with the current date of May 21, 2014 at docket
entry #65. Even if counsel had not noticed the corrections made, he should have
realized the dates of the decisions were different.

Petitioners’ counsel saw the filing of the corrected decision on May 21, 2014 but
apparently did not read it. He asserts that when he “received [notice of] the ‘Public
Decision’ on June 18, 2014,” he believed that filing was the corrected version of my
decision, and thus, that June 18, 2014 was the filing date. Pet. Motions at 3 (indicating
petitioners intended to file a motion for review of the June 18, 2014 decision). However,
even a cursory examination of the decision filed on June 18, 2014 would have revealed
the filing date listed at the top of the first page was May 21, 2014. The “Public Decision”
at docket entry #66 carried the filing date of May 21, 2014, not June 18.

This is not the first time this attorney, who is experienced in Vaccine Act cases,
has demonstrated a lack of due diligence and attention to filing deadlines. See Guillot
v. Sec’y, HHS, No. 03-775V, 2012 WL 3867160 (Fed. Cl. Spec. Mstr. Aug. 15, 2012);
Guillot v. Sec’y, HHS, No. 03-775V, 2012 WL 4788569 (Fed. Cl. Spec. Mstr. Sept. 13,
2012). In Guillot, the special master held a status conference in November 2011,
identifying several issues which needed to be addressed and ordering petitioners to file
additional medical records by February 1, 2012. Gulliot, 2012 WL 3867160, at *1-2.
When the petitioners failed to file the additional medical records by February 1, the
special master issued an order to show cause. Again receiving no response, the
special master dismissed the petitioners’ claim on March 8, 2012. Judgment in that
case entered on April 11, 2012. Id. at *2. On April 24, 2012 and again on September
12, 2012, petitioners filed motions for relief from judgment, claiming counsel had not
received notice of the three orders and decision issued after the status conference call
in November 2011. Gulliot, 2012 WL 4788569, at *1. Although petitioners’ counsel
acknowledged he had participated in the November 2011 call and was expecting the
issuance of an order following the call, he provided no reason why he waited until the
end of April 2012 to check on the status of the case.
8
 Petitioners ask me to declare a later filing date for my decision “which would
allow ample time for petitioners to file its [sic] motion for review, and thereby preserve
petitioners’ right to appeal.” Pet. Motions at 4. This later date would allow both their
motion for reconsideration and motion for review to be considered timely filed. However,
petitioners have cited no authority which would allow me to take such action.

In Waller, Judge Hewitt faced a similar request from counsel. In that case,
counsel claimed he was confused by the decision’s docket entry which was created and
dated on August 25, 2005, but which indicated the decision was filed on August 23,
2005.6 See Waller, 76 Fed. Cl. at 322-24. Counsel asked Judge Hewitt to “deem the
filing date of the decision for purposes of the Motion for Review to have been August
25, 2005.” Id. at 323 (quoting Petitioner’s Supplemental Motion at 2). When denying
the petitioner’s request, Judge Hewitt explained that granting the request would
effectively extend the amount of time allowed to file a motion for review, an action
expressly prohibited under Vaccine Rule 23.7 Waller, 76 Fed. Cl. at 323-24.

Petitioners here similarly ask that I ignore the requirements of Vaccine Rules 10
and 23 and allow them an extension of time by simply declaring a later filing date for my
decision. I have no authority to take this action.

Petitioners’ motion to declare a later filing date is DENIED.

Petitioners also request reconsideration of my decision dismissing their claim,
pursuant to Vaccine Rule 10(e). Because petitioners’ request was filed 49 days after I
issued my decision and 16 days after judgment entered, it is untimely.8

Even if the motion for reconsideration was timely filed, petitioners have failed to
demonstrate how the interest of justice would be served by granting their motion for
reconsideration. If missing a deadline through misunderstanding, neglect, or plain
failure to read the date of the decision were considered to constitute “the interest of
justice,” no filing deadline would ever stand.

Petitioners’ motion for reconsideration under Vaccine Rule 10 is DENIED.

6
In paper filings, the docket entry noting a certain action is sometimes entered a day or two after the filing
actually occurred.
7
Under the Vaccine Rules, a party must file a motion for review within 30 days (Vaccine Rule 23(a)) and
no extensions of time are allowed (Vaccine Rule 23(b)).
8
I note that petitioners could have filed a motion for reconsideration pursuant to Vaccine Rule 36 and
RCFC 59. Such a motion would have been timely since it would have been filed within 28 days of
judgment. See RCFC 59(b)(1). It is possible that petitioners’ counsel decided to forego requesting
reconsideration pursuant to RCFC 59 because he had a better chance of success under Vaccine Rule
10(e)’s less stringent standards for granting reconsideration. See Krakow, 2010 WL 5572974, at *5
(describing the “interest of justice” standard under Vaccine Rule 10(e) as placing a “less onerous” burden
on the moving party than the “manifest injustice” standard found in RFCF 59(a)).

9
 Petitioners’ third request is relief from judgment under RCFC 60(b)(1) which
allows relief for “mistake, inadvertence, surprise, or excusable neglect.” Petitioners
assert that “[t]he court’s filings of May 21, 2014, constitute ‘ill practices,’ a ‘mistake,’ or
‘surprise,’ were confusing, and merit immediate relief.” Pet. Motions at 1. Petitioners
argue “[their] failure to file a motion for review within thirty days constitutes ‘excusable
neglect.’” Id. at 4. Petitioners also cite Rule 60(b)(6) and claim their failure to file a
motion for review “is reasonable and justifiable, and the court should grant relief for ‘any
other reason that justifies relief’ under Rule 60(6) [sic], and Vaccine Rule 36.” Id.

Although there were minor grammatical errors in my initial decision filed on May
20, 2014, those errors were quickly corrected. There was nothing unusual or
unexpected about the method used to correct the errors. Thus, there is no good reason
for asserting that the May 21, 2014 filings somehow caused petitioners to miss the filing
deadline for their motion for review.

“[A] party has an affirmative duty to inquire about the status of his case” and
gross carelessness on the part of counsel is not a sufficient reason to grant relief under
RCFC 60(b)(1).9 Bridgham, 33 Fed. Cl. at 105 (rejecting counsel’s mistake as a basis
for relief); see also Guillot, 2012 WL 3867160, at *7; Kompothecras v. Sec’y, HHS, No.
02-2002V, 2012 WL 3929800, at *8 (Fed. Cl. Spec. Mstr. Aug. 14, 2012); Kompothecras
v. Sec’y, HHS, No. 02-110V, 2013 WL 1881022, at *13 (Fed. Cl. Spec. Mstr. Jan. 29,
2013) (rejecting counsel’s failings as not sufficient to establish excusable neglect
warranting relief under RCFC 60(b)(1)). Even though a mistake warranting relief under
RCFC 60(b)(1) may be from either party, attorney, or the court (see CNA Corp., 83 Fed.
Cl. at 8), counsel’s confusion and mistake regarding the dismissal decision’s filing date
is not sufficient to grant relief.

Petitioners’ motion for relief from judgment is a substitute for a timely filed motion
for review. According to Seven Elves, this weighs against granting petitioners’ request.
635 F.2d at 402 (second factor). Rule 60(b)(1) and (6) should not be invoked to excuse
“counsel’s mistake in not filing a timely motion for review.” Taylor v. Sec’y, HHS, 34
Fed. Cl. 137, 140 (1995); accord Waller, 76 Fed. Cl. at 323-24; Vessels, 65 Fed. Cl. at
569.

Moreover, the viability of petitioners’ underlying claim must be examined when
determining if relief from judgment should be granted. See Seven Elves, 635 F.2d at
402 (fifth factor). The motion should not be granted if petitioners’ underlying claim is
without merit. In my May 21, 2014 decision, I addressed each of petitioners’ arguments
that they were entitled to compensation. See Blake, 2014 WL 2769979. Factually, they
failed to demonstrate that their son’s post-vaccination symptoms constituted a Table
encephalopathy. Their belatedly-raised actual causation claim likewise lacked support
in the evidentiary record. Petitioners have presented no evidence, argument, or
9
“Courts have generally refused to grant relief under clause (6) based upon the ineffective assistance of
counsel, noting that such claims are better dealt with, if at all, under the ‘excusable neglect’ provision of
Rule 60(b)(1).” Kennedy, 99 Fed. Cl. at 548; see also supra at Section II.C. (discussion regarding the
mutual exclusivity of RCFC 60(b)(6) and earlier subsections).

10
information which would cause me to alter my decision in any way. Thus, granting
petitioners’ motion for relief from judgment would constitute the empty exercise
discussed in Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v.
Superline Transp. Inc., 953 F.2d 17, 20 (1st Cir. 1992).

The motion for relief from judgment is DENIED.

IV. Conclusion.

I have no authority to change the date of my decision and, thus, must deny
petitioners’ motion for reconsideration under Vaccine Rule 10(e) as untimely. Even if
petitioners’ motion for reconsideration were considered to be timely filed under Vaccine
Rule 10(e) or properly filed under Vaccine Rule 36 and RCFC 59, counsel’s failure to
read carefully either the May 21 decision or the June 18 “Public Decision” does not
constitute a basis for reconsideration.

Likewise, petitioners have provided no basis for relief from judgment under
Vaccine Rule 36 and RCFC 60. Petitioners have not shown evidence of mistake,
inadvertence, surprise, or neglect sufficient to warrant relief from judgment pursuant to
RCFC 60(b)(1). Moreover, petitioners’ arguments on the merits of the dismissal are the
same ones presented to me prior to my decision and were fully considered and
addressed in my decision. Nothing asserted would cause me to alter my decision to
dismiss their claim. Thus, granting petitioners’ motion for relief would serve only to
reset their time to seek review.

Relief from judgment is not meant to be a substitute for petitioners’ failure to file a
timely motion for review after receiving a full adjudication of their claim.

Petitioners’ motions of July 9, 2014 are therefore DENIED.

The Clerk shall provide a copy of this ruling10 to the parties and to Judge
Horn in accordance with Vaccine Rule 28.1.

IT IS SO ORDERED.

s/Denise K. Vowell
Denise K. Vowell
Chief Special Master

10
Although not a decision, this ruling constitutes my fulfillment of Judge Horn’s order remanding this case
to rule on petitioners’ requests for relief.

11