Mora v. Secretary of Health & Human Services

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

LORENA MORA, G.G.M., A MINOR, BY AND
THROUGH HER GUARDIAN AD LITEM,
Petitioners-Appellants

v.

SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________

2015-5139
______________________

Appeal from the United States Court of Federal
Claims in No. 1:13-vv-00421-EDK, Judge Elaine Kaplan.
______________________

Decided: December 16, 2016
______________________

SCOTT PHILIP DIXLER, Horvitz & Levy, Encino, CA, ar-
gued for petitioners-appellants. Also represented by
PEDER KRISTIAN BATALDEN.

ROBERT PAUL COLEMAN III, Torts Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BENJAMIN C. MIZER, C. SALVATORE D’ALESSIO, RUPA
2 MORA v. SECRETARY OF HEALTH AND HUMAN

BHATTACHARYYA, VINCENT J. MATANOSKI, CATHARINE E.
REEVES, CLAUDIA BARNES GANGI.

BRADLEY S. WOLFF, Swift, Currie, McGhee & Hiers,
LLP, Atlanta, GA, for amicus curiae Sanofi Pasteur Inc.
______________________

Before MOORE, CHEN, and HUGHES, Circuit Judges.
MOORE, Circuit Judge.
Ms. Lorena Mora, on behalf of her daughter G.G.M.,
appeals the judgment of the Court of Federal Claims
denying a motion for review of the Special Master’s denial
of relief under Rule 60(b)(6) of the Rules of the Court of
Federal Claims (“RCFC”). Ms. Mora seeks relief from a
judgment dismissing her petition for compensation under
the National Childhood Vaccine Injury Compensation
Program, 42 U.S.C. §§ 300aa-1–34 (“Vaccine Act”). For
the reasons discussed below, we affirm.
BACKGROUND
G.G.M. was born in February 2010. On September 5,
2012, she received an influenza vaccination, and two days
later, she complained of abdominal pain and was unable
to walk. Ms. Mora took G.G.M. to the emergency room at
Kaiser Permanente Hospital in Baldwin Park, California,
where G.G.M. was admitted and remained hospitalized
for approximately a month. After extensive medical
testing, G.G.M. was diagnosed with complete transverse
myelitis secondary to immunization. Ms. Mora, on behalf
of her daughter, filed a petition for compensation under
the Vaccine Act for G.G.M.’s complete lower extremities
paralysis and injuries resulting from adverse effects of the
vaccination.
In August 2013, Ms. Mora and the government partic-
ipated in an initial telephonic status conference, and the
assigned Special Master encouraged settlement. The
MORA v. SECRETARY OF HEALTH AND HUMAN 3

parties engaged in settlement negotiations to discuss the
amount of compensation for G.G.M.’s life care plan.
Ms. Mora asserted that “the life care planner has esti-
mated that G.G.M. will need in-home health care, an
extensive number of various orthopedic and urological
surgeries, and assorted medication due to her medical
conditions resulting from her transverse myelitis.” J.A.
74. At a status conference in July 2014, Ms. Mora’s
attorney stated that petitioner wished to dismiss her
petition and file a civil suit against the vaccine adminis-
trator and manufacturer. Ms. Mora’s attorney reported
that petitioner decided she could receive more compensa-
tion in civil court than under the Vaccine Act. The gov-
ernment said it would not appeal the dismissal. The
Special Master interpreted both parties’ agreement as an
oral stipulation to dismissal pursuant to the Court of
Federal Claims Vaccine Rule 21(a)(1)(B).
On July 21, 2014, the Special Master issued a decision
dismissing Ms. Mora’s petition for compensation and
directing the Clerk of Court to enter judgment according-
ly. The Special Master explained that “the Vaccine Act
permits petitioners to pursue a civil action once judgment
has entered on a decision by filing an election to sue
civilly under § 300aa-21(a).” Thus, the Special Master
directed entry of judgment in order that petitioner could
pursue a civil remedy. On August 29, 2014, the Clerk of
Court entered judgment.
In October 2014, Ms. Mora filed suit in the Los Ange-
les Superior Court against Sanofi Pasteur Inc. (“Sanofi”),
the manufacturer of the vaccine administered to G.G.M.,
alleging strict products liability for manufacturing defect,
design defect, and failure to warn. In December 2014,
Sanofi removed the suit to the Central District of Califor-
nia, and in February 2015, it filed a motion to dismiss
petitioner’s suit based on Bruesewitz v. Wyeth L.L.C., 131
S. Ct. 1068 (2011). Bruesewitz discusses § 300aa-22 of the
Vaccine Act and holds “that the National Childhood
4 MORA v. SECRETARY OF HEALTH AND HUMAN

Vaccine Injury Act preempts all design-defect claims
against vaccine manufacturers brought by plaintiffs who
seek compensation for injury or death caused by vaccine
side effects.” Bruesewitz at 1082. Section 300aa-22(c) of
the Vaccine Act provides that “[n]o vaccine manufacturer
shall be liable in a civil action for damages arising from a
vaccine-related injury or death associated with the admin-
istration of a vaccine after October 1, 1988, solely due to
the manufacturer’s failure to provide direct warnings to
the injured party . . . of the potential dangers resulting
from administration of the vaccine manufactured by the
manufacturer.” Ms. Mora’s attorney, who had never
before handled a vaccine injury case, had failed to conduct
basic legal research pertinent to the Vaccine Act and had
been unaware that Bruesewitz and § 300aa-22(c) of the
Vaccine Act preempt design defect and failure to warn
claims against the vaccine manufacturer. J.A. 2–3, 45.
Ms. Mora’s complaint was dismissed with leave to amend.
On January 21, 2015, Ms. Mora’s attorney filed a
motion in the Court of Federal Claims to set aside the
Special Master’s dismissal of the Vaccine Act petition.
Pursuant to 42 U.S.C. § 300aa-11(b)(2), a Vaccine Act
petitioner may only file one petition with respect to each
administration of a vaccine. Ms. Mora therefore request-
ed her petition be restored in the Court of Federal Claims.
She sought relief from judgment based on Rule 60(b)(1) of
the RCFC, alleging her attorney’s ignorance of the law
constitutes “mistake, inadvertence, surprise, or excusable
neglect,” or in the alternative, Rule 60(b)(6), under which
the court may relieve a party from final judgment for “any
other reason that justifies relief.”
The Special Master denied Ms. Mora’s motion for re-
lief based on both Rule 60(b)(1) and Rule 60(b)(6) grounds.
She determined that although Ms. Mora had a meritori-
ous claim for compensation and the government would not
be unduly prejudiced if the motion for relief were granted,
the attorney’s mistake of law does not qualify as “excusa-
MORA v. SECRETARY OF HEALTH AND HUMAN 5

ble neglect” warranting Rule 60(b)(1) relief. J.A. 7. She
also determined that enforcing a voluntary dismissal is
not a “grave miscarriage of justice” meriting Rule 60(b)(6)
relief. J.A. 8. She explained that Ms. Mora had not
shown how her attorney’s failure to research the conse-
quences of a voluntary dismissal constituted “extraordi-
nary circumstances” in which she is “faultless.” Id.
Ms. Mora sought review of the Special Master’s denial
of relief under Rule 60(b)(6) in the Court of Federal
Claims, and the Court of Federal Claims denied her
motion for review. Ms. Mora appeals. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review decisions by the Court of Federal Claims in
Vaccine Act cases de novo, applying the same standard it
applies in reviewing the Special Master’s decision. Mober-
ly ex rel. Moberly v. Sec’y of Health & Human Servs., 592
F.3d 1315, 1321 (Fed. Cir. 2010). The Court of Federal
Claims may set aside any findings of fact or conclusion of
law of the Special Master found to be arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law. 42 U.S.C. § 300aa-12(e)(2)(B). We review
findings of fact under the arbitrary and capricious stand-
ard, legal questions under the “not in accordance with
law” standard, and discretionary rulings under the abuse
of discretion standard. Saunders v. Sec’y of Health &
Human Serv., 25 F.3d 1031, 1033 (Fed. Cir. 1994). There-
fore, we review the Special Master’s decision whether to
grant or deny relief under Rule 60(b) of the RCFC under
an abuse of discretion standard.
On appeal, Ms. Mora argues the Special Master’s fail-
ure to recognize that an attorney’s gross negligence can
warrant relief from a judgment under Rule 60(b)(6) of the
RCFC constitutes legal error. She argues her attorney’s
gross negligence is not attributable to her, and
Rule 60(b)(6) is an escape hatch to relieve blameless
6 MORA v. SECRETARY OF HEALTH AND HUMAN

litigants of the consequences of their lawyers’ gross negli-
gence. She argues her attorney’s gross negligence
amounts to constructive abandonment that constitutes
extraordinary circumstances, under which Rule 60(b)(6)
relief is warranted.
The Court of Federal Claims provided a thorough
analysis of relevant case law and correctly noted that
“counsel’s failure to conduct basic legal research has had
and will continue to have extremely negative repercus-
sions for G.G.M. and her family.” J.A. 16. However, as
the opinion points out, the nature of the attorney negli-
gence at issue in this case is different in kind and degree
from the negligence in cases where Rule 60(b)(6) relief has
been granted. J.A. 18. Ms. Mora and her attorney agreed
to pursue a civil remedy in the hope of receiving greater
compensation than might be available under the Vaccine
Act. The attorney’s actions were consistent with his
client’s wishes. Providing legal advice, albeit erroneous
advice, to voluntarily dismiss the petition does not rise to
the same level of egregious conduct as an attorney’s
abandonment or affirmative misleading of his client. See
Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1170–71 (9th
Cir. 2002) (stating “‘extraordinary circumstances’ justify
the granting of relief” where the attorney “virtually
abandoned his client by failing to proceed with his client’s
defense despite court orders to do so”); see also Lal v.
California, 610 F.3d 518, 524–25 (9th Cir. 2010) (granting
relief under Rule 60(b)(6) of the RCFC where the attorney
virtually abandoned and deliberately misled his client).
We agree with the Court of Federal Claims that even if
we would have decided the motion differently, we cannot
say the Special Master abused her discretion in denying
the Rule 60(b)(6) motion.
Sanofi, as amicus curiae in support of Ms. Mora,
raises a different argument, which could itself be the
basis of a separate Rule 60(b) motion. It argues the
Vaccine Act requires a person seeking compensation for a
MORA v. SECRETARY OF HEALTH AND HUMAN 7

vaccine injury to first file a petition for compensation,
obtain a decision awarding or denying compensation and
a judgment on that decision, and then reject that judg-
ment before pursuing civil litigation against the vaccine
manufacturer. It notes that a Special Master’s “decision”
is defined by 42 U.S.C. § 300aa-12(d)(3) and is an order
“with respect to whether compensation is to be provided
under the [Vaccine Act] Program and the amount of such
compensation” and must “include findings of fact and
conclusions of law.” It argues the Special Master never
issued a “decision” on Ms. Mora’s petition because the
order lacked findings of fact and conclusions of law and
failed to determine whether compensation was to be
provided. It argues 42 U.S.C. § 300aa-12(e) requires the
clerk to issue a judgment only upon a Special Master’s
“decision,” and since the Special Master never issued a
“decision” on Ms. Mora’s petition, the clerk erred when it
issued a judgment.
To support its position, Sanofi discusses Hamilton v.
Sec’y of Health & Human Servs., No. 2-838V, 2003 WL
23218074 (Fed. Cl. Spec. Mstr. Nov. 26, 2003), in which
the Special Master concludes “that a ‘judgment’ should be
entered only after a special master files a ‘decision’ that
complies with § 300aa-12(d)(3)(A)—i.e., a ruling that
decides ‘whether compensation is to be provided and the
amount of such compensation,’ and which ‘includes find-
ings of fact and conclusions of law.’” Hamilton, 2003 WL
23218074, at *5. It also discusses the Secretary of Health
& Human Services’ position in the July 30, 2003 Response
to Special Master’s Questions Concerning The “Issue of
‘Judgments,’” filed in the Omnibus Autism Proceeding,
see, e.g., Autism General Order #1, 2002 WL 31696785
(Fed. Cl. Spec. Mstr. July 3, 2002), and relied upon by the
Special Master in Hamilton. Hamilton at *1. It argues
that there, the government argued that the clerk of court
is without authority to issue a judgment where a petition-
er files a notice of dismissal or the parties stipulate to a
8 MORA v. SECRETARY OF HEALTH AND HUMAN

dismissal, and for a judgment to issue, the Special Master
must first decide whether compensation is appropriate
and include in that decision findings of fact and conclu-
sions of law. Sanofi Pasteur Inc. Br. at 10.
Sanofi also points to Vaccine Rule 21(a)(3) to explain
that a voluntary dismissal of a Vaccine Act petition will
not result in a judgment, but the Special Master should
instead issue an “order concluding proceedings.” It argues
that had the Special Master issued an order concluding
proceedings, Ms. Mora’s voluntary dismissal would have
been without prejudice. In support of its argument it cites
Vaccine Rule 21(a)(2), which provides that “[u]nless the
notice or stipulation [of dismissal] states otherwise, the
dismissal is without prejudice, . . . .” It argues that had
the Special Master issued an order concluding proceed-
ings, Ms. Mora would have been able to re-file her com-
pensation petition within the statutory limitations period.
It cites 42 U.S.C. § 300aa-16(a)(2), which provides that a
petitioner may file a petition for compensation within
thirty-six months from the date of the occurrence of the
first symptom of a vaccine-related injury that occurred as
a result of administration after October 1, 1988 of a
vaccine set forth in the Vaccine Injury Table. It explains
that because G.G.M.’s symptoms began on September 7,
2012, Ms. Mora would have been able to re-file her peti-
tion up until September 7, 2015. It points out that
Ms. Mora filed her motion for relief from judgment on
January 21, 2015 and argues that because the Special
Master issued a “decision” and the clerk entered a judg-
ment upon that “decision,” Ms. Mora was improperly
barred from re-filing her petition within the thirty-six-
month window as she otherwise could have.
We ordered Ms. Mora and the government to file sup-
plemental briefing to address the issues raised in Sanofi’s
amicus brief. In her supplemental brief, Ms. Mora argues
a “decision” under the Vaccine Act is a decision on the
merits, one that addresses whether compensation is to be
MORA v. SECRETARY OF HEALTH AND HUMAN 9

provided and includes findings of fact and conclusions of
law pursuant to 42 U.S.C. § 300aa-12(d)(3)(A), and one
that is a necessary prerequisite to the entry of judgment.
She argues if a petitioner voluntarily dismisses her Vac-
cine Act petition, the Special Master should issue an order
concluding proceedings, not a judgment.
In support of her argument, she identifies Vaccine
Rule 10’s provision that “the special master will issue a
decision on the petition with respect to whether an award
of compensation is to be made and, if so, the amount
thereof.” She identifies Vaccine Rule 11’s direction to the
clerk of court to enter judgment after “the filing of the
special master’s decision under Vaccine Rule 10.” She
also identifies Vaccine Rule 21(a)(3)’s provision that a
voluntary dismissal of a petition “will not result in a
judgment pursuant to Vaccine Rule 11,” but will instead
result in the Special Master’s issuing “an order concluding
proceedings.” She argues the Special Master failed to
issue a decision on the merits, and therefore the judgment
entered following that decision should be considered void.
She argues the unauthorized entry of judgment prej-
udiced G.G.M. She argues had the Special Master issued
an order concluding proceedings, the dismissal of the
petition would have been without prejudice, and she could
have re-filed her petition within the statutory limitations
period. She argues the Special Master’s interpreting the
parties’ agreement as an oral stipulation to dismissal
pursuant to Vaccine Rule 21(a)(1)(B) does not establish
that the parties ever agreed to a dismissal with prejudice
or that the Special Master had ever construed the oral
stipulation in that manner. She argues her inability to
re-file the petition for compensation is therefore the result
of the Special Master’s deviation from the Vaccine Act’s
statutory requirements.
In supplemental briefing, the government concedes
that pursuant to Vaccine Rule 21(a)(3), an order conclud-
10 MORA v. SECRETARY OF HEALTH AND HUMAN

ing proceedings and not a judgment should have been
issued after the dismissal of Ms. Mora’s petition. It
recognizes that, consistent with its position in the Omni-
bus Autism Proceeding, a judgment is issued only after a
Special Master enters a decision pursuant to
42 U.S.C. § 300aa-12(d)(3). However, it argues that
despite the incorrect issuance of a judgment, Ms. Mora
still would not have been able to re-file her petition for
compensation because her petition was dismissed with
prejudice. It argues Ms. Mora sought dismissal of her
Vaccine Act petition to pursue a civil action, a petitioner
cannot pursue a civil action until exhausting the remedy
created by the Vaccine Act, and the remedy created by the
Vaccine Act cannot be exhausted by the issuance of a
judgment without prejudice. It suggests that under
Vaccine Rule 21(a)(1) and (2), a petitioner may voluntarily
dismiss a petition and request that said dismissal be
prejudicial. It argues therefore that Ms. Mora effectively
requested a prejudicial dismissal of her petition in order
to pursue a civil action.
Though the issues raised by Sanofi are important and
raise legitimate concern over the issuance of a dismissal
with prejudice and the entry of judgment, the Special
Master should decide these issues in the first instance.
The circumstances of this case, which seem to penalize
quite severely a now six-year-old paraplegic girl for her
attorney’s gross negligence, resonate with the remedial
principle that Rule 60(b) should be “liberally construed for
the purpose of doing substantial justice.” Patton v. Sec’y
of Health & Human Services, 25 F.3d 1021, 1030 (Fed.
Cir. 1994).
While Sanofi’s arguments, now embraced by
Ms. Mora, could be the bases of a separate Rule 60(b)
motion, they were not the bases of the motion denied by
the Special Master before us. We therefore decline to
reach the merits of these arguments in the first instance.
We cannot review a decision on a Rule 60(b) motion,
MORA v. SECRETARY OF HEALTH AND HUMAN 11

based upon prejudice to Ms. Mora caused by the mistaken
entry of judgment, until such motion is first brought
before and decided by the Special Master. We note that a
litigant can bring successive Rule 60(b) motions. We also
note that pursuant to Rule 60(c)(1), a one-year time bar
only precludes a motion based on Rule 60(b)(1), (2), or (3)
upon the facts of this case.
CONCLUSION
For the foregoing reasons, we affirm the decision of
the Court of Federal Claims denying the motion for re-
view of the Special Master’s decision.
AFFIRMED
COSTS
No costs.