NOTE: This disposition is nonprecedential.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, argued for petitioners-appellants. Also represented by 

PEDER KRISTIAN BATALDEN.

ROBERT PAUL COLEMAN III, Torts Branch, Civil Division, 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 participated 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 estimated 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 administrator and manufacturer. Ms. Mora’s attorney reported 

that petitioner decided she could receive more compensation in civil court than under the Vaccine Act. The government 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 accordingly. 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 Angeles 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 California, 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 administration 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 requested 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 relief based on both Rule 60(b)(1) and Rule 60(b)(6) grounds. 

She determined that although Ms. Mora had a meritorious 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 consequences of a voluntary dismissal constituted “extraordinary 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 jurisdiction 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. Moberly 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, capricious, an abuse of discretion, or otherwise not in accordance with law. 42 U.S.C. § 300aa-12(e)(2)(B). We review 

findings of fact under the arbitrary and capricious standard, 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). Therefore, 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 failure 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 negligence. 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 repercussions for G.G.M. and her family.” J.A. 16. However, as 

the opinion points out, the nature of the attorney negligence 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 judgment 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 findings 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 petitioner 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 conclusions 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 proceedings, Ms. Mora would have been able to re-file her compensation 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 petition 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 judgment upon that “decision,” Ms. Mora was improperly 

barred from re-filing her petition within the thirty-sixmonth window as she otherwise could have. 

We ordered Ms. Mora and the government to file supplemental 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 Vaccine 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 prejudiced 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 Omnibus 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 review of the Special Master’s decision.

AFFIRMED

COSTS

 No costs.