throbber
Case: 22-1854 Document: 36 Page: 1 Filed: 12/19/2022
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`STEPHANIE DIMASI,
`Petitioner-Appellant
`
`v.
`
`SECRETARY OF HEALTH AND HUMAN
`SERVICES,
`Respondent-Appellee
`______________________
`
`2022-1854
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:15-vv-01455-AOB, Judge Armando O. Bonilla.
`______________________
`
`Before MOORE, Chief Judge, PROST and TARANTO, Circuit
`Judges.
`
`PER CURIAM.
`
`O R D E R
`I
`Stephanie DiMasi, at the time 47 years old and en-
`rolled as a nurse-practitioner student, received an influ-
`enza vaccine on December 4, 2012. Appx. 15. She was
`admitted to the hospital on December 5, 2012, released the
`next day, and then readmitted on December 8, 2012. Appx.
`83–90, 96–99. Just under three years later, Ms. DiMasi,
`through her counsel, filed a petition in the United States
`Court of Federal Claims
`(Claims Court) seeking
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`DIMASI v. HHS
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`compensation under 42 U.S.C. §§ 300aa-10 to -34 (the Vac-
`cine Act), alleging injuries from the vaccine. Appx. 16, 21,
`25. Ms. DiMasi’s counsel sought a decision on the papers,
`without submission of oral testimony. On November 7,
`2019, the special master assigned to the matter denied
`compensation. Appx. 21–29.
`The special master noted that the parties agreed on the
`character and existence of the post-vaccination conditions
`at issue, as ultimately diagnosed in 2016 and 2017: “small
`fiber neuropathy” and “postural tachycardia syndrome”
`(POTS), which are related. Appx. 27; see also Appx. 42, 65.
`He also noted that no claim of significant aggravation of a
`preexisting condition, see 42 U.S.C. § 300aa-11(c)(1)(C),
`had been presented. Appx. 21. After analyzing the evi-
`dence, including expert reports on both sides, the special
`master found that the vaccine was not the cause in fact of
`the conditions at issue, because her “conditions pre-dated
`the influenza vaccination.” Appx. 21; see also Appx. 27–29.
`Ms. DiMasi had thirty days to seek Claims Court re-
`view of the special master’s ruling. 42 U.S.C. § 300aa-
`12(e)(1). No such review was sought, and the Claims Court
`entered final judgment against the claim for compensation
`on December 11, 2019. Appx. 30.
`On September 15, 2020, within a year of the final judg-
`ment, Ms. DiMasi sent the special master a letter, with
`medical records and other attachments, requesting that
`she be allowed to proceed pro se (because of alleged signif-
`icant problems with her counsel’s actions) and that her
`case be reopened. Appx. 31–151. Her counsel promptly
`submitted a responsive affidavit. Appx. 153–56. The spe-
`cial master allowed Ms. DiMasi to proceed pro se and con-
`strued her request to reopen her case as a motion for relief
`from judgment under Claims Court Rule 60. Appx. 162,
`181–82, 190–91. Ms. DiMasi responded to counsel’s affida-
`vit, Claims Ct. Dkt. No. 103, and the Secretary opposed the
`motion, Claims Ct. Dkt. No. 106. On June 3, 2021, the
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`DIMASI v. HHS
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`special master denied Ms. DiMasi’s motion, Appx. 157, but
`then, on her request for reconsideration, Appx. 172–76;
`Claims Ct. Dkt. No. 113, he vacated the denial, Claims Ct.
`Dkt. No. 115 (vacatur). Thereafter, the government made
`a supplemental filing, Claims Ct. Dkt. No. 120, and Ms. Di-
`Masi sought leave to file additional material, Appx. 16 n.2,
`182.; Claims Ct. Dkt. No. 118.
`We view Ms. DiMasi’s initial September 2020 filing,
`her response to counsel, and her request for reconsidera-
`tion as collectively constituting her Rule 60 motion for re-
`lief from the December 2019 judgment. Ms. DiMasi made
`several contentions. Perhaps most centrally, she asserted
`a fundamental misunderstanding about facts regarding
`the precise timing of the emergence of key (neuropathy)
`symptoms, a misunderstanding that, she alleged, is re-
`flected in expert submissions and infected both the special
`master’s denial of compensation and her own counsel’s sub-
`missions, including his choice not to present a significant-
`aggravation claim. See, e.g., Appx. 31–32 (Sept. 2020 let-
`ter); Ex. 13 at 17–18 (expert reports); Ex. 7 at 1 (expert re-
`ports); Appx. 24, 21 (denial of compensation); Appx. 153
`(counsel affidavit). She also alleged misunderstandings of
`certain pre-vaccination records. See, e.g., Appx. 31; Ex. 19
`at 3, 17 (quoted at Appx. 193–94); Ex. 7 at 1 (quoted at
`Appx. 194). Ms. DiMasi tied the misunderstandings and
`her counsel’s submissions and choices to allegations that
`counsel failed to fulfill duties to communicate with her and
`(unless counsel withdrew) to respect her right to make cer-
`tain key choices as the client in the attorney-client relation-
`ship, including some choices about what claims to raise.
`See, e.g., Appx. 32, 153. In addition, she asserted deficien-
`cies by counsel in not seeking review by the Claims Court
`of the compensation denial, not definitively telling her he
`would not do so, and not informing her of the filing dead-
`line. See, e.g., Appx. 32, 153.
`On November 10, 2021, the special master denied Ms.
`DiMasi’s Rule 60 motion and motion for leave to file
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`DIMASI v. HHS
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`additional material. Appx. 178. He first addressed the ad-
`ditional-material motion, which he denied after elaborat-
`ing legal standards for various provisions of Rule 60. Appx.
`183–90, 204–09. As to the Rule 60 motion itself, the special
`master, relying on legal formulations set forth in the dis-
`cussion of the additional-material motion, denied relief
`from the December 2019 judgment. Appx. 190–99. Among
`other conclusions, the special master rejected Ms. DiMasi’s
`allegation of misunderstanding of evidence about when
`precisely neuropathy symptoms manifested themselves af-
`ter the vaccination (immediately or, instead, after a few
`days) and the related challenge to counsel’s decision to re-
`quest a ruling on the record without oral testimony from
`Ms. DiMasi and his decision not to raise a significant-ag-
`gravation claim. Appx. 191–97. Regarding counsel’s not
`having sought further review of the November 2019 special
`master’s ruling, which the special master said presented “a
`close call,” the special master recognized the deficiencies in
`counsel’s communication with Ms. DiMasi but ultimately
`found that Ms. DiMasi failed to act diligently to preserve
`her rights. Appx. 199.
`The Claims Court subsequently denied Ms. DiMasi’s
`motion for review of the special master’s November 2021
`decision, finding no reversible error. Appx. 15–20. Ms. Di-
`Masi timely appealed, still acting pro se. We have jurisdic-
`tion under 28 U.S.C. § 1295(a)(3). Under the Vaccine Act,
`we review a decision of the special master “under the same
`standard as the [Claims Court].” Rodriguez v. Secretary of
`Health & Human Services, 632 F.3d 1381, 1383–84 (Fed.
`Cir. 2011). We must set aside the decision if it is “arbitrary,
`capricious, an abuse of discretion, or otherwise not in ac-
`cordance with law.” Avera v. Secretary of Health & Human
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`Services, 515 F.3d 1343, 1347 (Fed. Cir. 2008) (quoting 42
`U.S.C. § 300aa-12(e)(2)(B)).
`II
`Ms. DiMasi’s pro se filings raise issues whose resolu-
`tion would significantly benefit from additional briefing
`(and oral argument), including from an attorney appointed
`by this court as an amicus to support her appeal. We here
`selectively identify certain issues raised in this appeal.
`The new briefing should address those issues. We do not
`confine the new briefing to those issues, to the exclusion of
`other issues that are pertinent to the resolution of the ap-
`peal.
`The Claims Court’s Rule 60(b) identifies various
`“grounds for relief from a final judgment, order, or proceed-
`ing.” Claims Court Rule 60(b) (capitalization removed).
`We look to cases interpreting Rule 60(b) of the Federal
`Rules of Civil Procedure, which governs in district courts,
`in interpreting the identical Claims Court’s Rule 60(b). See
`Progressive Industries, Inc. v. United States, 888 F.3d 1248,
`1253 n.4 (Fed. Cir. 2018); Information Systems & Networks
`Corp. v. United States, 994 F.2d 792, 794 n.3 (Fed. Cir.
`1993). We review a decision to grant or deny relief under
`Rule 60(b) for an abuse of discretion, including an error of
`law or clearly erroneous finding of fact. Patton v. Secretary
`of Department of Health & Human Services, 25 F.3d 1021,
`1029 (Fed. Cir. 1994). In some circumstances, a trial court
`considering a Rule 60(b) motion must resolve factual dis-
`putes, and sometimes a hearing is required in order to do
`so. See, e.g., Sheng v. Starkey Laboratories, Inc., 53 F.3d
`192 (8th Cir. 1995); Michaud v. Michaud, 932 F.2d 77 (1st
`Cir. 1991); Garabedian v. Allstates Engineering Co., 811
`F.2d 802 (3d Cir. 1987); Montes v. Janitorial Partners, Inc.,
`859 F.3d 1079, 1084–85 (D.C. Cir. 2017); Durukan Amer-
`ica, LLC v. Rain Trading, Inc., 787 F.3d 1161, 1164 (7th
`Cir. 2015); Bouret-Echeverria v. Caribbean Aviation
`Maintenance Corp., 784 F.3d 37, 46–49 (1st Cir. 2015); 11
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`DIMASI v. HHS
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`Charles A. Wright, Arthur R. Miller & Mary Kay Kane,
`Federal Practice and Procedure § 2865 (3d ed. updated
`Apr. 2022).
`In this case, the question arises whether the special
`master must a hold a hearing, or otherwise have further
`factfinding proceedings, to resolve factual disputes perti-
`nent to Ms. DiMasi’s Rule 60(b) motion. In the present Or-
`der, we focus specifically on what is needed to apply Rule
`60(b)(1) in this case. Ms. DiMasi filed for relief within the
`one year allowed for 60(b)(1) motions. See Claims Court
`Rule 60(c)(1); Fed. R. Civ. P. 60(c)(1). It is not apparent
`that any of the 60(b)(2)–(5) bases applies to this case. And
`the catch-all 60(b)(6)—which is not subject to the one-year
`filing rule, see Claims Court Rule 60(c)(1); Fed. R. Civ. P.
`60(c)(1)—“is available only when Rules 60(b)(1) through
`(b)(5) are inapplicable,” Kemp v. United States, 142 S. Ct.
`1856, 1861 (2022). Rule 60(b)(1) is therefore an appropri-
`ate first subject of analysis.1
`A
`Rule 60(b)(1) authorizes relief from a judgment for,
`among other things, “mistake.” A “mistake,” the Supreme
`Court has recently ruled, is a “factual misconception or
`misunderstanding” or an “error of law or fact,” whether by
`
`
`1 Without being exhaustive, we note two of the topics
`not otherwise discussed in this Order. First, we do not dis-
`cuss the challenge to counsel’s not seeking Claims Court
`review of the special master’s November 2019 ruling. It is
`not apparent what prospect Ms. DiMasi would have had in
`any such review on the record, including arguments, then
`before the special master. The issue we discuss involves,
`in contrast, an argument that the record itself was defec-
`tive, with asserted deficiencies of counsel responsible. Sec-
`ond, we also do not discuss here the denial of leave to file
`additional material in support of the Rule 60(b) motion.
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`a party or by the court. Kemp, 142 S. Ct. at 1862 (cleaned
`up). It is implicit in the definition that invocation of this
`provision is not available for a mere later-regretted choice
`not infected by such an incorrect understanding. Cf. In re
`Dinsmore, 757 F.3d 1343, 1347–48 (Fed. Cir. 2014) (dis-
`cussing “error” required for reissue of a patent). The as-
`serted mistake we discuss in this Order is about medical
`facts—a mistake, it is asserted, that affected the adjudica-
`tion and that entered the record essentially uncontested,
`and infected counsel’s choices about what claims to press,
`because of counsel’s failures to fulfill duties inherent in the
`attorney-client relationship.
`In this combination of factual mistake and attorney
`failure, the factual mistake we discuss here concerns the
`appearance of neuropathy symptoms after the vaccination.
`Ms. DiMasi asserts that the medical records written by two
`physicians (Drs. Chen and Fischer) who saw her a few
`weeks after her vaccination and listened to her account of
`the symptoms she had a few weeks earlier, contain inaccu-
`rate descriptions of the timing (perhaps also of the body lo-
`cation) of her neuropathy symptoms in the first several
`days after the vaccination—whether the inaccuracy re-
`sulted from her own error or imprecision in articulation in
`a doctor-patient interview or from the physicians’ misun-
`derstanding of what she said. The timing issue is whether
`the neuropathy symptoms (unlike other symptoms) mani-
`fested themselves within hours of the vaccination, as those
`records report her saying, or, instead, not until several
`days later, as she alleges. Compare Appx. 24; Ex. 13 at 17,
`18; Ex. 7 at 1, with DiMasi Opening Br. at 12; Appx. 37;
`Appx. 220. As support for her allegation, Ms. DiMasi
`points to evidence of medical and other records more con-
`temporaneous with the days in question—from December
`4, 2012, the day of vaccination, to a few days later—as not
`showing the neuropathy symptoms until several days after
`the vaccination. See Appx. 23, 37, 59, 173, 224; Appx. 83–
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`DIMASI v. HHS
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`90; Appx. 224 (referring to Claims Ct. Dkt. No. 31-2); Ex. 6
`at 48; Ex. 13 at 17.2
`As to the attorney-failure component of the central al-
`legation, Ms. DiMasi has alleged “that she advised” her
`counsel “on several occasions that the neurological symp-
`toms did not begin until three to four days after the vac-
`cination.” Appx. 193; Appx. 154–55 ¶¶ 16–17 (counsel
`stating that she supplied him a marked-up copy of the Dr.
`Chen record indicating where she thought it was inaccu-
`rate).3 Nevertheless, she has alleged, her counsel did not
`
`
`2 The records include one or more reports submitted to
`the Vaccine Adverse Event Reporting System (VAERS)
`maintained by Centers for Disease Control and Prevention
`(CDC) and Food and Drug Administration, both of which
`are components of the Department of Health and Human
`Services. In this court, Ms. DiMasi moved to supplement
`the appendix just after receiving from the CDC her previ-
`ously requested official VAERS record. We grant the re-
`quest. The Secretary does not deny that this is an accurate
`copy of an official government record being submitted
`simply to establish, at this point, the fact that the record
`says what it says. The government has not suggested that
`the document is inappropriate for judicial notice of that
`fact. See Fed. R. Evid. 201; 16A Charles A. Wright & Ar-
`thur R. Miller, Federal Practice and Procedure § 3956.1
`(5th ed. updated Apr. 2022) (under Fed. R. Evid. 1101, ap-
`pellate court may take judicial notice of a fact that meets
`the Fed. R. Evid. 201 standard).
`3 In discussing the grievance about misunderstanding
`of post-vaccination medical evidence, the Claims Court
`used the word “doctored” to refer to Ms. DiMasi’s markup
`for counsel of the report from Dr. Chen. Appx. 18–19. We
`have seen no justification to support any suggestion that
`she altered the record to hide its original content to fool
`anyone into believing that the original contained the words
`
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`DIMASI v. HHS
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`challenge the accuracy of the medical records in what he
`submitted to the special master or offer her testimony on
`the point, see Appx. 174–76, a decision she alleges was not
`preceded by an adequate discussion with her, Appx. 175,
`211, 216–17, even though the portions of the records at is-
`sue seemingly rested on an oral conversation to which she
`was a party several weeks after the vaccination.
`Ms. DiMasi contends that correction of the alleged mis-
`take could in fact undermine the special master’s Novem-
`ber 2019 denial of Vaccine Act compensation. The dispute
`over entitlement to compensation, as presented to the spe-
`cial master, concerned the origin of the conditions at issue,
`with necessary evaluation of the presence of symptoms in
`two time periods: after vaccination and before vaccination.
`Ms. DiMasi also challenges counsel’s decision not to assert
`a significant-aggravation claim before the special master,
`see Appx. 32; Appx. 155 ¶ 22, which might be affected by a
`proper understanding of post-vaccination manifestation of
`the particular symptoms. We understand Ms. DiMasi to
`contend that the asserted mistake about the post-vaccina-
`tion facts contributed to counsel’s decision not to claim
`that, even if a condition preexisted vaccination (as the Sec-
`retary asserted), it was significantly aggravated by the vac-
`cine—a claim that, not presenting the starker before-
`versus-after choice of causation, may be easier to establish
`and could have been argued in the alternative. And Ms.
`DiMasi alleges that counsel did not adequately consult
`with her about the decision not to present a significant-ag-
`gravation claim. See Appx. 174.
`
`
`she wrote—rather than using a familiar technique to indi-
`cate, on her copy (not the only copy, see Ex. 13 at 17), pre-
`cisely where she thought the record was inaccurate,
`without any pretense that her words were the original. See
`Appx. 193–94 (special master discussing Ms. DiMasi’s
`handwritten “corrections” to medical report).
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`The special master expressly relied on Ms. DiMasi’s
`consultations with Drs. Chen and Fischer in his evaluation
`of the post-vaccination facts to assess the plausibility of a
`connection of the at-issue conditions to the vaccination by
`way of an immunological reaction. Appx. 24, 28, 194. The
`special master’s November 2019 opinion cites and quotes
`key passages from the records of Drs. Chen and Fischer at
`issue, including specifically what those records themselves
`say to the effect that the (allegedly misunderstood) facts
`about symptoms and their emergence post-vaccination run
`counter to an inference of causation by the vaccine. Appx.
`24, 28. Moreover, the Secretary’s expert, whose conclusion
`the special master adopted as persuasive, Appx. 28–29, re-
`lied on at least Dr. Chen’s statements. See Leist Report at
`8; Leist Supp. Report at 1. The motion for judgment on the
`record that Ms. DiMasi’s own counsel filed on her behalf
`itself relies on Drs. Chen and Fischer’s statements for the
`timing of her neurological symptoms, Claims Ct. Dkt. No.
`87, at 2–3, as does the Secretary’s response to that motion,
`Claims Ct. Dkt. No. 88, at 4, 29–30. Significantly, the No-
`vember 2019 opinion does not seem to say that, even if the
`tingling symptoms of neuropathy manifested themselves
`when and how Ms. DiMasi asserts, the special master
`would still find that the neuropathy condition (or related
`POTS) preexisted the vaccination. And it does not address
`a significant-aggravation claim, which was not presented.
`B
`For at least the reasons just discussed, there appears
`to be a substantial contention here, presenting factual dis-
`putes, of potentially material mistake under Rule 60(b)(1),
`involving certain attorney failures and the results of those
`failures. We ask the amicus and the Secretary to address
`whether the special master’s factfinding procedures were
`legally sufficient in this case, including his decision of Ms.
`DiMasi’s Rule 60 motion without conducting a hearing.
`There also are serious questions about whether governing
`legal standards for Rule 60(b) relief nevertheless justify
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`denial of further factfinding proceedings in these circum-
`stances.
`
`1
`When discussing Rule 60(b)(1), the special master re-
`cited and accepted as applicable, Appx. 187, this court’s
`three-part approach laid out in Information Systems, which
`requires a court to consider “(1) whether the non-defaulting
`party will be prejudiced; (2) whether the defaulting party
`has a meritorious [claim or] defense; and (3) whether cul-
`pable conduct of the defaulting party led to the default,”
`994 F.2d at 795. The Secretary has not urged departure
`from that approach. Secretary’s Br. at 4, 12–13.4
`The special master found for Ms. DiMasi on the first
`two elements—finding that the government would not be
`prejudiced if Ms. DiMasi’s Rule 60 motion were granted
`and that Ms. DiMasi had a meritorious claim in the sense
`that a different judgment regarding compensation might
`well be required if her claim were credited. Appx. 187. So
`far, the Secretary in this court seemingly has not contested
`those findings or disputed that they apply to the analysis
`
`
`4 The special master laid out the Rule 60(b)(1) ap-
`proach of Information Systems when discussing the addi-
`tional-materials motion, but he did not articulate a
`different approach to Rule 60(b)(1) when considering the
`motion for relief from judgment. The Secretary also had
`not made such a distinction. The special master also did
`not rely on, and the Secretary has not urged, a different
`standard for the “mistake” component of Rule 60(b)(1),
`even though Information Systems addresses the “excusable
`neglect” component (and in a default-judgment context).
`The Secretary, however, is not precluded from discussing
`whether the Information Systems approach (including any
`willfulness requirement) applies in this case in the re-
`newed briefing.
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`DIMASI v. HHS
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`of Ms. DiMasi’s Rule 60 motion. The special master, how-
`ever, applied the third factor, Appx. 187–88, without recit-
`ing the Information Systems ruling that “culpable conduct”
`means that a “party willfully declined to follow a court’s
`rules and procedures,” Information Systems, 994 F.2d at
`796. He made no finding, and we have not been shown a
`basis, at least in the current briefing, on which he could
`have found, culpable conduct under the willfulness stand-
`ard articulated in Information Systems.
`2
`The special master, citing Pioneer Investment Services
`Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380
`(1993), found that Ms. DiMasi had engaged in culpable con-
`duct because the actions and decisions of her counsel—in-
`cluding those actions that Ms. DiMasi alleges support her
`claim of attorney abandonment—were ultimately the re-
`sponsibility of Ms. DiMasi. Appx. 187, 191–99. But no
`analysis by the special master or argument by the Secre-
`tary in this court seeks to justify using Pioneer to depart
`from Information Systems—which addressed Pioneer in
`adopting the standard it did. See 994 F.2d at 795–96.
`We have more questions than answers at this point
`about the appropriate standards for binding a client to
`counsel’s decisions in circumstances where a factual “mis-
`take” of a party or its counsel is later alleged. The proper
`scope of Rule 60(b)(1)’s mistake component requires more
`inquiry, and that inquiry must take account of the poten-
`tial frequency of do-overs under the appropriate standards.
`We ask the amicus and the Secretary to address the extent
`to which Pioneer and Information Systems apply to the
`Rule 60(b)(1) mistake component here and whether the
`special master applied the correct framework to the facts
`of this case. We further ask them to address whether Ms.
`DiMasi’s Rule 60(b) motion, considered under the mistake
`component of Rule 60(b)(1), can prevail without a finding
`of attorney failure.
`
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`DIMASI v. HHS
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`In Pioneer itself, the Supreme Court did not address
`the “mistake” component of Rule 60(b)(1). It addressed the
`“excusable neglect” component (to apply a bankruptcy rule
`containing the same language). 507 U.S. at 395–99. In
`that context, the Court reiterated the principle that a client
`can sometimes be held accountable for the actions of its at-
`torney as agent. Id. at 396–97. The Court ruled that deny-
`ing relief in the case before it was an abuse of discretion.
`Id. at 399.
`Pioneer involved asserted attorney deficient perfor-
`mance of a role (complying with court deadlines) allocated
`to counsel under standard principles defining an attorney–
`client relationship—making the principal (client) responsi-
`ble for the agent’s (counsel’s) acts in that assigned role. See
`Restatement 3d Law Governing Lawyers § 27 (updated
`Oct. 2022). This case, in contrast, involves allegations that
`could be understood as asserting an attorney usurpation or
`impairment of the client’s own retained authority under
`those principles. See, e.g., id. § 16(1) (“To the extent con-
`sistent with the lawyer’s other legal duties and subject to
`the other provisions of this Restatement, a lawyer must . . .
`proceed in a manner reasonably calculated to advance a cli-
`ent’s lawful objectives, as defined by the client after consul-
`tation.”); id. § 16 cmt. c (“The client, not the lawyer,
`determines the goals to be pursued . . . .”); id. § 16 cmts. d,
`e; id. § 20(1) (“A lawyer must keep a client reasonably in-
`formed about the matter and must consult with a client to
`a reasonable extent concerning decisions to be made by the
`lawyer under §§ 21–23.”); id. § 20 cmt. b; id. § 20 cmt. c
`(“Important events might affect the objectives of the client,
`such as the assertion or dismissal of claims against or by
`the client . . . .”); id. § 21 & cmt. d; ABA Model Rule of Pro-
`fessional Conduct 1.2(a) (“Subject to paragraphs (c) and (d),
`a lawyer shall abide by a client’s decisions concerning the
`objectives of representation and, as required by Rule 1.4,
`shall consult with the client as to the means by which they
`are to be pursued.”); ABA Model Rule of Professional
`
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`DIMASI v. HHS
`
`Conduct 1.4; cf. Restatement 3d Law Governing Lawyers
`§ 22(1) (updated Oct. 2022) (“[T]he following and compara-
`ble decisions are reserved to the client except when the cli-
`ent has validly authorized the lawyer to make the
`particular decision: whether and on what terms to settle a
`claim . . . .”); Michaud, 932 F.2d at 80 (discussing attorney
`duty to obtain client authorization to dispose of claim);
`Garabedian, 811 F.2d at 803 (same). We have been pre-
`sented no analysis of the relevance of such distinctions
`among different attorney responsibilities. We ask that the
`parties address how Ms. DiMasi’s counsel-related allega-
`tions apply to the Rule 60(b) analysis.
`3
`We note several other potential problems with the spe-
`cial master’s analysis denying Ms. DiMasi’s Rule 60 mo-
`tion. The special master relied on an “extraordinary
`circumstances” requirement without distinction among the
`subsections of Rule 60(b). See Appx. 184, 191–92, 194. But
`the Supreme Court and our court have explained that the
`requirement that a movant show the existence of “extraor-
`dinary” (or “exceptional”) circumstances applies only to mo-
`tions seeking relief under Rule 60(b)(6), not 60(b)(1)—
`reflecting the importance of not allowing the catch-all
`(b)(6), which lacks a one-year-filing limit, to override the
`constraints on (b)(1) (or other) grounds for relief. See
`Kemp, 142 S. Ct. at 1861; Pioneer, 507 U.S. at 393 (“To jus-
`tify relief under subsection (6), a party must show ‘extraor-
`dinary circumstances’ . . . .”); Information Systems, 994
`F.2d at 795 (“While subsection (6) requires a showing of
`‘extraordinary circumstances,’ subsections (1) and (6) of
`Rule 60(b) ‘are mutually exclusive,’ and the required show-
`ing of extraordinary circumstances under subsection (6)
`does not apply to . . . subsection (1).” (citations omitted)).
`That requirement does not apply to analysis of Ms. Di-
`Masi’s motion under, for example, Rule 60(b)(1).
`
`

`

`Case: 22-1854 Document: 36 Page: 15 Filed: 12/19/2022
`
`DIMASI v. HHS
`
`15
`
`The special master also stated that “attorney errors
`amounting to gross negligence are not considered excep-
`tional circumstances that warrant reopening the case.”
`Appx. 193. The special master cited four decisions in sup-
`port of this proposition. Appx. 184–85. But the cited deci-
`sions do not seem to support the statement—even aside
`from the fact that the point being discussed in those deci-
`sions was how to apply the exceptional (or extraordinary)
`circumstances standard under Rule 60(b)(6), not 60(b)(1).
`Three of the cited decisions state that gross negligence
`of an attorney can be an extraordinary circumstance. Lal
`v. California, 610 F.3d 518, 521 (9th Cir. 2010) (“We hold
`. . . that an attorney’s gross negligence constitutes an ex-
`traordinary circumstance warranting relief from a judg-
`ment . . . .”); Community Dental Services v. Tani, 282 F.3d
`1164, 1172 (9th Cir. 2002) (“Where, as here, an attorney
`engages in grossly negligent conduct resulting in [a de-
`fault] judgment, the client merits relief under Rule
`60(b)(6), and may not be held accountable for his attorney’s
`misconduct.”); Boughner v. Secretary of Health, Education
`& Welfare, 572 F.2d 976, 978 (3d Cir. 1978) (“We reverse,
`however, on the basis that the motion to vacate should have
`been granted under Rule 60(b)(6). The conduct of [counsel]
`indicates neglect so gross that it is inexcusable. . . . We
`hold, therefore, that in the factual setting here, which war-
`rants relief under Rule 60(b)(6), appellants are not bound
`by the acts of their attorney for the purposes of the rule.”).
`And the fourth opinion cited by the special master, Heim v.
`Commissioner, 872 F.2d 245 (8th Cir. 1989)—for the prop-
`osition that “any errors committed by [counsel], even ac-
`cepting the designation of gross negligence, do not
`constitute an adequate showing of ‘exceptional circum-
`stances,’” Appx. 185 (alteration in original) (quoting Heim,
`872 F.2d at 248)—is not an opinion of the court. It is Judge
`Gibson’s separate opinion, which was not joined by the rest
`of the panel. See Superior Seafoods, Inc. v. Tyson Foods,
`Inc., 620 F.3d 873, 878 (8th Cir. 2010) (citing “Heim v.
`
`

`

`Case: 22-1854 Document: 36 Page: 16 Filed: 12/19/2022
`
`16
`
`DIMASI v. HHS
`
`Comm’r, 872 F.2d 245, 249 (8th Cir. 1989) (John R. Gibson,
`J., writing separately)”). The two other members of the
`panel concurred only “in the result,” not “reach[ing] the
`question of whether the taxpayers have made an adequate
`showing of exceptional circumstances under [Rule] 60(b).”
`Heim, 872 F.2d at 249 (Lay, C.J., concurring). We ask the
`amicus and the Secretary to address whether the foregoing
`cases (and any others it finds applicable) regarding attor-
`ney conduct that amounts to “gross negligence” extend to
`the facts of this case.
`
`III
`To be clear, the foregoing represents only our current
`understanding of the issues and does not represent any fi-
`nal conclusion on any issue of law or characterization of the
`record. This order does not close the door on arguments
`regarding any of the issues, or challenges to any of the as-
`sumptions, that are reflected in this order. Counsel should
`present all applicable arguments that advance their re-
`spective positions.
`The court will appoint counsel to file a brief (and argue)
`as amicus in support of Ms. DiMasi’s appeal. Upon an-
`nouncement of the appointment on our docket, counsel will
`have 60 days to file such a brief. The Secretary will have
`40 days from that filing to respond, and amicus 30 days
`thereafter to reply. The length and content standards for
`formal briefs of an appellant and appellee shall govern ami-
`cus and the Secretary respectively.
`Two issues concerning confidentiality need to be ad-
`dressed. First, the ability of amicus to carry out the as-
`signed task depends on amicus having access to the
`confidential materials in the Claims Court record. Within
`one week of this Order, each of Ms. DiMasi and the Secre-
`tary shall file with this court a statement authorizing ami-
`cus to have access to the full Claims Court record under a
`standard protective order or identifying the portions of the
`record for which such access is being denied. If access is
`
`

`

`Case: 22-1854 Document: 36 Page: 17 Filed: 12/19/2022
`
`DIMASI v. HHS
`
`17
`

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