majority of circuits have held that such relief is available under those circumstances and the government now agrees that such relief can be available even so the disc they ask question master in this case fail to recognize that rule sixty six relief was ever available in the case of attorney gross negligence she didn't say that sixty b can be granted in gross negligence doesn't mean that she didn't understand it your argument is that she failed to appreciate a governing legal point so i need to understand just failure to mention it doesn't indicate to me that you fail to appreciate the right there are so turning to the actual standard that she did apply the way her decision is structured is that she sets out the legal standard for real sixty v one first and under the rule cites the federal case says federal courts have consistently upheld the principle that quote and attorneys failure to evaluate carefully the legal consequences of a chosen course of action provides no basis for relief from judgment under rule sixty be one or well that's not wrong it's the to the extent that circuits have identified gross negligence as a basis for sixty one and it seems to me that the judge for the court of federal guidelines pretty affectively and clearly articulated the difference between gross negligence of the kind which separates the lawyer from his client i tell you i'm going to file something in a timely fashion and then i don't file it a lawyer his actions were not consistent with his client's wishes and that kind of gross negligence is gross negligence attributed solely to the lawyer and therefore should not be held attributable to the client but in this case there are repeated examples of the lawyer saying that he and his client have agreed to pursue civil remedy where they think they can receive a larger compensation package i can understand why they'd want to do that but it doesn't seem to me that there is any fundamental breakdown in the attorney client relationship which i see in every one of the cases where course negligence was allowed soul what am i missing prosecutor a default judgment on the one hand or severe a failure to conduct legal research that results in a voluntary dismissal the problem is the argument you're asking for if it seems to me would allow for a sixty v every single time an attorney makes and in correct assessment of the legal chant legal proposition at issue any time the attorney makes an error of law if there is a case that says the opposite and he shouldn't have have let his client down that path where problem is that happens over time nothing personal but you know on many instances lawyers missed overlook often inexcusably as in in this case but overlook governing law and make those mistakes with their clients agreement in the sentence yes the client is not knowledgeable or sophisticated and doesn't know it but that's what happened that i think it seems to me has been ruled out as a basis for sixty by the case law and accepted you know as not entitle ing someone to sixty b really what am i missing oh well your honor the cases are clear as as i said that attorney gross negligence can be a limiting factor is is the gross negligence of counsel this is the ninth circuit makes this point in the tiny case that unfortunately attorney negligence failure to understand legal rules etc is all too common across negligence is rare and here in this case there's no concern about that at all because the government concede that attorney son's failure to conduct any research about the preemptive scope of vaccine act was grossly negligent so well in some cases admittedly there could be are you trying to make a distinction between legal failure to conduct and you legal research at all and this isn't just a case where there was legal research conducted and it led the attorney to an erroneous conclusion of law that unfortunately had bad consequences for the client this is a case where no legal research whatsoever was conducted and that and that's where  just to bring up another point is that the government like the special master or excuse me like judge kaplan put significant weight on the distinction between a grossly negligent act and a grossly negligent omission and the government argued that while a grossly negligent omission could we agree with sanofi that the vaccine program is the appropriate venue for g m s claim that we have completely agree with sanofi that this case should not be proceeding in the federal district court it should not proceed in state court it belongs in the vaccine program so in that  and the reason why is that from as we see it for as between g m and the government the arguments completely inconsequential whether a judgment entered as it did in this case or whether it were concluding proceedings entered under rule twenty one you baffling me i have to stop you you've got to stop talking you're digging yourself a hole i don't even understand your argument but inconsequential if this had been an order dismissal without prejudice you could have refile you had your california order when you see my dates here you could have brought your california order was you could have brought in till september seventh of two thousand and fifteen a new petition if the  petition have been dismissed without prejudice you could have refile so how can you say it in consequential whether the special master had dismissed without prejudice which seems to me the only thing that would have been appropriate to do under the rules of the vaccine act and the statute vs actually entering a judgment against you seemingly which cannot be done under the rules or the statute absent a decision on the merits and a judgment against you prevents you from refiling and leaves you with the only avenue being sixty if she had followed proper rules and instead entered this is a dismissal with prejudice when you found out from california you still had almost a whole year in which you could  refile this claim not been barred by the statute of limitations and refiled your petition because a dismissal without prejudice would have allowed you to do that so how can you say her designation of this is inconsequential how can you say you considered it in decided giving away your case yet if it gets to a judge of it you lose because i don't think we're going to agree but i'm speaking for myself but your view of the difference between gross negligence negligence an attorney mistake is not going to hold up with me but if this was at a judgment and should never have entered as a judge that then maybe there's something that the special master should have taken a look at correct and under the choice of words but the reason i mention it is because either the judgment or the order concluded proceedings in the under vaccine rule thirty six is subject to attack under rule sixty be so in either case and that's just west but it's a judgement you will lose if it was an order concluding proceedings you probably wish it ok your honor and that's and obviously i don't agree that we should lose if it were a judgment but i think your honors so in that world what i would ask the court to do is that if the court agrees with sanofi that in order concluding proceeding should have entered a not a judgment but i would just ask that the court not remain with instructions to enter the order concluding proceedings because as a practical matter that would have no consequence and that's kind of what i meant if you have any settlement discussions you don't have to tell  confidential that either before the special master or the court at all claims when you refile this before the special master yes before the court a federal claims yes and that was i wasn't involved in the case at that time on a plane the first time on the i just read to you i mean suspect inclusion of law says pursuant to forty two u s c section three hundred it's the same section the special master will issue a decision when the petition with respect to whether an award of compensation is to be made and if so the amount there of doesn't that rule lend further support to the idea that a decision is only a decision if it reaches the merits of the case and as distinct from a dismiss you've got different examples of where judgement is not appropriate and every one of them seems to not every one of them but they all seem to me or in some respects this case none and they all  first first of all though i would like to highlight for the court that there is a provision under the law for a claim to be removed from the vaccine program after two hundred forty days and for the petitioner to dancy remedy in civil court there  judgment to pursue civil action there are inherent and errantly arguing there's a prejudicial your same vaccine rule twenty one eight two the dismissal can be with prejudice yes but not under circumstances that we have here but additionally regarding that the current decision and this was the point and the curried decision from special master who sent us and in our briefing of that issue was that there was a fear that the vaccine program would be given for the program even the chance to work even a taint of a settlement discussions pursued their claim for more than two hundred forty days they're entitled to a judgment to a decision within two hundred forty days but they didn't get that therefore her judgment in this case procedurally and i think she may have thought she was helping them because that entering judgment would let them down so over to a civil suit in california i don't know why she did it but it's clearly contrary to the rules  the statute judgment could not have been entered in this case and dismissed a voluntary dismissal does not amount to judgment and your rule by the way that single twenty one eighty two which i also have here says unless the notice or stipulation states otherwise dismissal is without and tried to dismiss then it could be that the only circumstance but rule that you actually cited to judge ken claiming that allowed for those does not allow for clearly on its face it only allows for dismissal with prejudice in one circumstance which is absolutely notification there was an official at the two hundred forty day mark there was a notification and petitioner opted to remain in the program at that time but that doesn't eliminate the right for a birth or closing them from issue any decision there you would need a decision and judgment it's a separate provision just that opting out after two hundred forty days is enough to opt into that and into civil court you know that you're standing in front of me arguing that your argument is in the best interest of that scene a claim that's right now that's what you're arguing who the two year old little girl that is paralyzed by virtue of receiving the flu vaccine the government is not this little girl's going to need a lot of medical care and that's why we have the vaccine etc so you don't get to stand in front of me and take the high road and claiming that my government is acting in the best interest of the vaccine at claimant because my government would be standing here defending this case my government would have not opposed the rule sixty b to begin with you might be on totally solid foundation with this gross negligence nonsense but you are on terrible footing on the sanofi for if and when you leave here you're going to think about it and i'm going to give you sixty days to brief why i shouldn't send it back under sixty b and have the special master evaluate the failure of the special master to have followed proper procedure which seems pretty damn clear to me in this case that she should not have entered a judgment and if that is what is presented i have all the dates in front of me they could refile the new petition and we wouldn't be here the government all but it needed that everything factually weighed in favor of giving this little girl's family potential it's not even an argument but just another consideration is that there are also other petitioners coming for the program and if they are but i get it i used to argue before the secretary for v a it's really hard in doing the government take in some very sympathetic claimants and i get what you're trying to argue is that the program overall even though it may be unfair here is intended to allow plain that's who want to elect their choice to opt out but if they do that should it incumbent upon the special master and the government to make sure that they're doing it under the right procedures which would have here i take it to fall in a lecture that they're no longer willing to proceed after two hundred forty days rather than to enter into some kind of stipulated dismissal that under your war shouldn't have resulted i judge that yes i believe that's true this was a unique set of circumstances where i think the issue was raised orally instead of and right and and the respondent didn't know that it was coming up in the special master and now that it's come out so yes it should have been dealt with in a different procedural comment about this is in the best interests of the vaccine a claimant in this case this little girl is not getting with and her best interests but you know it's not you and i know that and the government has made legitimate arguments that are quite well founded on the gross negligence points and i understand why you want to take them to the natural conclusion on the legal points i get all of it i guess for me i don't understand why you didn't settle this case and  sixty days to do it and i sure as heck hope you do i do think there is a very legitimate argument in the green brief but it was made by him you know that's not the fact and i get that i get that it doesn't mean it couldn't be i mean i've done all the research on sixty you can make as many of them as you want me it's an equitable thing the equity east clearly all favor them and if the special master was complicit in even though they asked for it to be a judgment the attorney before him was completely incompetent and that ought weigh in favor of this two year old pair of paralyzed or girl in terms of the equities so i think i really hope that i don't have to see you guys back here we're going to issue an order asking for a briefing or on some of the points raised and sanofi and we'll give you all sixty days be an adequate amount of time for  further i just hope that both sides understand that they didn't receive all of it and certainly the very difficult of the government there were serious mistakes made by the claimants council earlier in this process that deprived her of what she was due and those should a couple of minutes of rebuttal time and you can use it however you see fit i think you want to sit out but you can use it however you see if that i will i do want to go ahead start a clock i'm going to talk the part of it i do want to this little girl deserves some sort of support for the rest of her life and i hope that you all will find a collective way to reach the right clearly the right result here but you don't have a super strong case so i don't like the fact that we came down so hard on the government i don't want you to think ok there's a huge payday in the future and you don't have a great case in the blueberry the best you've got is maybe of a key demand for consideration of arguments raised in the going rate and i guess i just want you to know that flat out so that you're not walking in to a settlement agreement thinking you've got us clear cut winner in this case now yet your stand i mean you heard all that and i understand your honor thanks and you can go ahead and use whatever time you want and i'm going to take your honors advice to sit down i just before i do i just to make make clear that in addition to the gross negligence point in this is this is goes to points that the bench is making during the government's argument is that there are other equitable considerations here apart from the gross negligence issue that warrant