# Hampton v. Secretary of Health and Human Services

> United States Court of Federal Claims · May 22, 2024

URL: https://www.frixlaw.com/law-library/cases/10735239

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** May 22, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Daniel T. Horner
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10735239

## How later opinions describe it (automated extraction)

- characterizing the one-year limitation of RCFC 60(c) as an “absolute bar” to motions filed after that period
- explaining that “plaintiff’s allegations cannot support the simultaneous pursuit of relief under RCFC 60(b)(1) and (b)(6) because the provisions are mutually exclusive and because plaintiff’s entire amended motion is properly construed as seeking relief for ‘excusable neglect’”

## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1857V

JERMAINE A. HAMPTON, Filed: April 22, 2024

Petitioner, Reissued for Public Availability: May
v. 22, 2024

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

Jermaine A. Hampton, pro se, Sheboygan, WI, petitioner.
Emilie Williams, U.S. Department of Justice, Washington, D.C., for respondent.

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT1
On December 9, 2019, petitioner filed a petition under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa, et seq. (2012), alleging that he suffered a
Shoulder Injury Related to Vaccine Administration (“SIRVA”) following receipt of an
influenza (“flu”) vaccination on March 7, 2017. (ECF No. 1.) Judgement entered
dismissing the petition on May 17, 2022. (ECF No. 63.) Petitioner subsequently filed a
motion seeking relief from that judgment on February 22, 2024. (ECF Nos. 65-66.) For
the reasons discussed below, petitioner’s motion is DENIED.
I. Procedural History
Petitioner filed this action as a pro se litigant and remained a pro se litigant
throughout the duration of the case. At the time of filing, he was incarcerated at
Waupun Correctional Institution and alleged that his injury occurred as a result of a
vaccine administered during his incarceration. Petitioner filed a motion to proceed in
forma pauperis, which was granted. (ECF Nos. 2, 10.) Because petitioner was unable
to secure and file complete medical records on his own, respondent at my direction
obtained his records by subpoena and filed them as Exhibits A-H. (ECF Nos. 22, 27.)

1 Pursuant to Vaccine Rule 18(b), this Order was initially filed on April 22, 2024, and the parties were

afforded 14 days to propose redactions. The parties did not propose any redactions. Accordingly, this
Decision is reissued in its original form for posting on the court’s website.

1
Respondent filed his Rule 4 Report on April 15, 2021. (ECF No. 42.) Based on
his review of the petition and medical records, respondent asserted that petitioner could
not meet the standard for establishing a Table Injury of SIRVA (which would have a
presumption of vaccine-causation) because he had preexisting adhesive capsulitis, his
alleged injury was not limited to his shoulder, and his symptoms were otherwise
explained by cervical spinal stenosis with cord compression. (Id. at 11-12.)
Alternatively, the medical records did not include any medical opinion that would support
causation-in-fact. (Id.)
Following the filing of respondent’s report, I issued a lengthy order on May 12,
2021, explaining petitioner’s options with respect to how to proceed. (ECF No. 44.) I
advised petitioner that he could, as appropriate, move for dismissal, a ruling on the
existing record, or any relevant findings of fact. (Id. at 3.) Alternatively, I noted that I
would permit petitioner time to seek counsel or to seek additional evidence, including an
expert report. (Id. at 3-4.) I noted that these options were not mutually exclusive and
directed petitioner to file a status report indicating how he would proceed. (Id. at 4.)
Petitioner did not respond to my order, and I issued a follow-up order indicating
that, “[g]iven how difficult this case will be to prosecute and petitioner’s inaction, it is
unclear whether petitioner intend to continue his claim.” (ECF No. 46.) I attached
courtesy copies of respondent’s report and the May 12, 2021 Order and provided
petitioner an additional opportunity to respond. I noted that if no filing was made, I
would issue an Order to Show Cause, which would be petitioner’s final opportunity to
avoid involuntary dismissal. (Id.)
Thereafter, on September 7, 2021, petitioner filed a status report in response to
my order. (ECF No. 47.) In the status report, petitioner maintained his allegations and
explained that “Petitioner is scheduled for release on Nov. 16th 2021 and he intends to
get a complete and accurate cause of his other medical issues as to dispute or provide
objective evidence that would support a finding in my favor.” (Id.) Alternatively,
petitioner made an offer of settlement whereby he would agree to dismiss his case in
exchange for an award of attorneys’ fees and costs. (Id.)
Following petitioner’s filing, I issued a Scheduling Order on September 9, 2021.
(ECF No. 48.) I advised that “I am construing petitioner’s status report as a motion to
stay the case pending his release from prison.” (Id.) I ordered respondent to file a
response to the motion and cautioned petitioner as follows:
Petitioner is also advised that he will have a continuing obligation to
maintain contact with the court and that any order granting his motion to
stay will require petitioner to provide updated contact information where he
can be reached following his release from prison. Failure to provide current
and accurate contact information will not prevent this case from being
involuntarily dismissed should petitioner fail to prosecute.
(Id. (emphasis omitted).)

2
Subsequently, on September 23, 2021, petitioner filed two motions, a motion to
voluntarily dismiss and a motion for attorneys’ fees and costs. (ECF Nos. 49-50.) I
denied petitioner’s motion for attorneys’ fees and costs (ECF No. 53) and held the
motion to dismiss in abeyance because petitioner appeared not to understand that his
motion to dismiss would end all of his rights in the Program (ECF No. 51). I allowed
petitioner time to determine if he wished to withdraw the motion to dismiss and indicated
I would grant the motion absent a response to the order within 30 days. (Id. at 2.)
Petitioner filed a motion to withdraw his motion to dismiss on October 28, 2021.
(ECF No. 56.) In the motion, he sought further guidance with respect to how to
proceed. (Id.) I then issued a follow-up order on November 8, 2021. (ECF No. 57.) I
explained that “I am aware that petitioner will be released from prison on November 16,
2021 and will therefore no longer be receiving communications at the address provided
to the court.” I ordered petitioner to file a status report in 30 days providing updated
contact information, including a telephone number, mailing address, and if appropriate,
an e-mail address, and I advised that a telephonic status conference would be
scheduled. (Id.) As discussed further below, petitioner now indicates that he did not
receive a copy of this order at the time it was issued. (ECF No. 65, p. 2; ECF No. 66, p.
5.)
Receiving no response from petitioner, I issued an Order to Show Cause why the
case should not be involuntarily dismissed. (ECF No. 58.) Petitioner was advised that
the show cause deadline was his last opportunity to avoid involuntary dismissal. (Id. at
4.) In order to avoid dismissal, petitioner was ordered to file a status report providing
sufficient contact information to schedule a status conference. (Id.) The Order to Show
Cause was mailed to petitioner both at his docketed address at Waupun Correctional
Institute, as well as to his parole office, which was located on the court’s own initiative.
The copy mailed to Waupun Correctional Institution was returned to sender. (ECF No.
59.) In the instant motion, petitioner represents he did not receive a copy of the Order
to Show Cause from his parole officer until February 5, 2024. (ECF No. 65, p. 2.)
Receiving no response to the Order to Show Cause, and after more than five
months of no contact from petitioner, I issued a decision dismissing this case on April
14, 2022. (ECF No. 60; see also Hampton v. Sec’y of Health & Human Servs., No. 19-
1857V, 2022 WL 1467654 (Fed. Cl. Spec. Mstr. Apr. 14, 2022).) The case was
dismissed both for failure to prosecute and for insufficient proof based on the existing
record. (ECF No. 60, pp. 7-8.) In the decision, I found that in light of petitioner’s failure
to prosecute, his prior motions to stay, to dismiss, and to withdraw his dismissal motion,
were all moot. (Id. at 8.) With regard to the merits, I found based on my review of the
medical records that petitioner’s preexisting adhesive capsulitis defeated his claim. (Id.
at 7.) Because that issue was dispositive, and because petitioner had failed to
prosecute, I did not reach the further question of whether petitioner’s alleged symptoms
were instead caused by his cervical spinal issue, as respondent had additionally
argued. (Id. at n. 10.)

3
As with the Order to Show Cause, the decision was mailed to petitioner at both
Waupun Correctional Institution as per the docket as well as to his parole office. The
copy mailed to Waupun was returned to sender, and petitioner represents in the instant
motion that he did not receive the copy sent to his parole office until February 5, 2024.
(ECF No. 65, pp. 1-2.) Judgment entered on May 17, 2022, and the judgment was
mailed to petitioner in the same manner. (ECF No. 63.) Petitioner represents that he
did not become aware of the judgment dismissing the case until February of 2024.
(ECF No. 65, pp. 1-2; ECF No. 66, p. 5.)
Approximately 20 months after judgment entered, the court received four
documents from petitioner between February 21, 2024 and February 22, 2024. These
documents explain that petitioner was homeless following his release from prison, that
he has recently been incarcerated again, and that he only recently became aware of the
dismissal of his case. Three of the documents were accepted by my leave as a motion
for relief from judgment and supporting documents. These were docketed at ECF No.
65. A fourth document was filed as a supplement to that motion and was docketed at
ECF No. 66. These documents will be addressed collectively by this decision as one
motion.
In my order accepting petitioner’s filings by my leave, I ordered respondent to file
a response to petitioner’s motion by March 8, 2024, and ordered petitioner to then file a
reply by April 5, 2024. (ECF No. 64.) Respondent filed his response on March 8, 2024.
(ECF No. 67.) Petitioner submitted a reply that was ultimately received by the court on
April 10, 2024. (ECF No. 68.) Accordingly, petitioner’s motion is now ripe for resolution.
II. Party Contentions

a. Petitioner’s Initial Motion
Throughout his initial motion papers, petitioner raises several circumstances that
he contends favor a reopening of judgment. First, petitioner asserts that he had filed a
motion to stay proceedings to allow for time to seek guidance regarding litigation of his
claim after his release from prison, which occurred on November 16, 2021. (ECF No.
65, p. 1.) Second, during the relevant period in which this case was dismissed,
petitioner was “homeless without any available assistance to help him to litigate this
claim.” (Id.) In that regard, petitioner indicates “[i]n the month of December the
petitioner called and spoke with the clerk and requested that all documents and
information be sent to his Email address as he had no actual address to receive
physical mail.”2 (Id.) Third, petitioner did not find out about the dismissal of this case

2 Petitioner does not indicate in what year he pursued this contact. He was released from Waupun
Correctional Institution in November of 2021 and did not file the instant motion until February of 2024.
Accordingly, the reference to December could refer to 2021, 2022, or 2023. It should also be noted that
petitioner’s reference to “the clerk” is ambiguous. Although petitioner may have spoken to someone in
the office of the Clerk of Court, there was no contact made to the clerks of my own chambers. In either
event, petitioner conspicuously does not indicate what the person he spoke to advised. None of this is to
doubt that the call occurred; however, without more, this representation regarding an isolated phone call

4
until February 5, 2024. (Id. at 1-2.) On this point, petitioner asserts that his parole
officer did not forward any mail to him, including several of this court’s orders until that
date. (Id. at 2.) In his supplemental submission, petitioner more specifically asserts
that he did not receive the undersigned’s orders of November 9, 2021 or December 9,
2021, or the judgment dated April of 2022.3 (ECF No. 66, p. 5.)
Petitioner additionally asserts that he can, if permitted, prove that he suffered a
vaccine-caused injury. (ECF No. 65, p. 2; ECF No. 66, p. 1.) Petitioner asserts that
false information was added to his medical records in order to sabotage his claim. (ECF
No. 66, p. 1.) He also asserts that his current treating physician will support his claim.
(ECF No. 65-2, p. 2.) Petitioner attaches several medical records to his motion.
Specifically:
• A medical record from the Wisconsin Department of Corrections for an encounter
of November 27, 2018. (ECF No. 66, p. 10.) At that time petitioner was seen for
both his cervical neck issues as well as adhesive capsulitis he attributed to his flu
vaccination. (Id.) This record contains no medical opinion regarding his
adhesive capsulitis. (Id.)

• A request for an off-site MRI of petitioner’s cervical spine dated February 3, 2020.
(ECF No. 66, p. 11.)

• A medical record from the University of Wisconsin Hospital neurosurgery
department for an encounter of August 14, 2020. (ECF No. 66, pp. 12-13.)
Petitioner reports having a history of a “bad reaction” to a vaccine that resulted in
inflammation of his shoulder joint. (Id. at 12.) This record contains no medical
opinion regarding petitioner’s shoulder or his reported vaccine reaction.
In pertinent part, petitioner cites Rules 59 and 60 of the Rules of the Court of
Federal Claims (“RCFC”) as permitting the undersigned to grant him relief from
judgment.4 In sum, he argues as follows:

to an unknown person to unknown effect occurring sometime during the last three calendar years is not
strong evidence of diligence on petitioner’s part.

3 Petitioner’s descriptions do not exactly match what was issued in this case. However, it is reasonable to
conclude that petitioner is referring to the undersigned’s Order issued November 8, 2021 (ECF No. 57),
Order to Show Cause issued December 28, 2021 (ECF No. 58), and Decision issued April 14, 2022 (ECF
No. 60). These are the only documents issued in the case during the months referenced by petitioner. To
the extent petitioner references the judgment issued in the case, that occurred on May 17, 2022. (ECF
No. 63.)

4 Actually, petitioner cites the Federal Rules of Civil Procedure (“FRCP”), which do not apply in this case;

however, I construe petitioner as having invoked Rules 59 and 60 of the Rules of the Court of Federal
Claims, which are substantially similar and govern the same relief within this court. Vaccine Rule 36
provides a vehicle for vaccine petitioners to access RCFC 59 and 60. Petitioner also cites various
subsections of FRCP 6 as well as 28 U.S.C. § 1655 and the Soldiers and Sailors Civil Relief Act of 1940.

5
Petitioner asserts that this circumstance is extraordinary and that his
inability to access the Court was not of his own doing but of not being
notified of [illegible5] orders . . . . Petitioner also asserts that he intended to
gather more information concerning his medical history and diagnosis as he
believed that the prison was somehow altering his records and adding
information which can be attributed to another inmate as well as to track
down the offsite providers who treated the petitioner which would contradict
the dates provided by the institution in the petitioner’s medical records and
would support that the petitioner did so suffer a shoulder related injury which
was caused only by the vaccine.
(ECF No. 66, pp. 5-6.)
b. Respondent’s Response
In his response, respondent requests that petitioner’s motion be denied. (ECF
No. 67.) As a threshold matter, respondent notes that only petitioner’s claim with
respect to RCFC 60(b)(6) potentially remains timely. (Id. at n. 2.) However, he explains
that subsection (6) of Rule 60 requires extraordinary circumstances such that a “grave
miscarriage of justice” would result absent relief. (Id. at 3 (quoting Kenzora v. Sec’y of
Health & Human Servs., 126 Fed. Cl. 588, 596 (2016)).) Respondent stresses that
granting relief under RCFC 60(b) “should be the exception, not the rule.” (Id. (quoting
Vessels v. Sec’y of Health & Human Servs., 65 Fed. Cl. 563, 568 (2005)).)
Even without the specific one-year limitation applicable to RCFC 60 subsections
(1)-(3), respondent argues that petitioner did not file his motion within a reasonable time
following the entry of judgment as required by RCFC 60(b)(c). (ECF No. 67, p. 4.)
Although petitioner asserts he was unaware of the dismissal of his case, respondent
stresses that RCFC 60(b)(6) does not relieve a party of a “free, calculated, and
deliberate choice.” (Id. (quoting Kennedy v Sec’y of Health & Human Servs., 99 Fed.
Cl. 535, 548 (2011), aff’d per curiam, 485 F. App’x 435 (Fed. Cir. 2012)).) Respondent
asserts that petitioner knowingly failed to notify the court of his appropriate contact
information despite the court’s order to do so. (Id.) Respondent acknowledges that
petitioner’s circumstances were “undoubtedly significant personal hardships,” but
contends that they do not represent the extraordinary circumstances required to obtain
relief under RCFC 60(b)(6). (Id. at 4-5.) Respondent argues that petitioner is merely
seeking an opportunity to relitigate a claim that has already been found to be without
merit. (Id. at 5.)
c. Petitioner’s Reply

Although I have considered these additional citations, I cannot discern how they are relevant or helpful to
petitioner’s position.

5 Petitioner’s motion papers are handwritten.

6
In his reply, petitioner focuses on RCFC 60(b)(6), which he characterizes as a
“catchall provision” permitting relief from judgment “for any other reason that justifies
relief.” (ECF No. 68, pp. 3-4.) Citing Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014),
and several other cases, petitioner argues that his circumstances qualify for a “stop
clock” approach to equitable tolling whereby his obligations remained tolled for the
duration of his qualifying period of extraordinary circumstances. (Id. at 6-7.) He
indicates that his homelessness “directly affected his ability to communicate with the
court and is a[n] extraordinary circumstance.” (Id. at 7.) Citing National Credit Union
Administration Board v. Gray, 1 F.3d 262, 266 (4th Cir. 1993), petitioner argues that
extraordinary circumstances exist “when proceedings may have taken place without the
knowledge of the ‘losing party’ and through no fault of that party.” (Id. at 9.) Throughout
his reply, petitioner extensively discusses the standard for relief under RCFC 60(b)(6),
citing numerous cases.
Petitioner argues:
Petitioner’s allegations set up an extraordinary situation which cannot fairly
or logically be classified as mere “negl[igence]” on his part. . . . The basis of
his petition was not that he had neglected to act in his own defense, but that
he never received notices from the court concerning the state of his claim,
and that while in prison he was indigent and without a lawyer or the funds
to hire one, and once released he was homeless and unable to defend
himself against the dismissal of his claim because he had never received
notice of the state of his claim before nor after he left prison.
(Id. at 13-14.)
Petitioner’s reply also includes several specific arguments responding to various
points in my prior orders and decision, as well as points raised in respondent’s response
to his motion. First, petitioner is critical of respondent’s response for relying on the
content of court orders that he did not receive. (ECF No. 68, p. 5.) Further, petitioner
stresses that, because the undersigned’s order of November 8, 2021 was not mailed
until November 9th, it would not realistically have made it to petitioner prior to his release
on November 16th, given that the prison did not process mail on the weekend.6 (Id.)
Petitioner also reiterates that his motion included medical reports that he asserts prove
he experienced vaccine-caused adhesive capsulitis. (Id. at 8, 14-15.) Petitioner asserts
it is “false” for respondent to assert that he had a full and fair opportunity to litigate his
case, indicating that he was indigent during his incarceration and did not have access to
his medical file in order to dispute false information in the medical records. (Id. at 10.)
Petitioner believes respondent knowingly withheld evidence and only presented records

6 Petitioner’s explanation is premised on his understanding that November 11, 2021, was a Friday. (ECF
No. 68, p. 5.) However, November 11, 2021, was a Thursday. Accordingly, it is not clear if petitioner’s
description of the prison’s mail processing actually does explain why he didn’t receive the November 8,
2021 order. But, in any event, nothing in the analysis below turns on that specific detail.

7
that would support a denial of compensation.7 (Id. at 10.) Accordingly, petitioner
disputes the case was decided on the merits.8 (Id. at 10-11.) Petitioner also sets out
other disagreements with respondent’s characterization of the procedural history and
dismissal of this case.
III. Legal Standard
Vaccine Rule 36 allows parties in this program to seek relief from judgment via
RCFC 59 and 60. See Vaccine Rule 36(a). Because this case has never been
assigned to a judge for review, any motion pursuant to Vaccine Rule 36 is directed to
the special master. See Vaccine Rule 36(a)(2). The special master must file a written
ruling on the motion that may then be subject to a motion for review.9 See Vaccine Rule
36(b).

RCFC 60(b) sets forth six circumstances under which the court may relieve a
party from a final judgment or order. Specifically:
(1) Mistake, inadvertence, surprise, or excusable neglect;

(2) Newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under RCFC 59(b);

(3) Fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;

(4) The judgment is void;

(5) The judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or

7 To be clear, there is no evidence that respondent withheld any evidence from the court, either knowingly

or otherwise. Because petitioner was unable to secure his own medical files due to his status as being an
incarcerated and indigent individual, I directed and authorized respondent to subpoena petitioner’s files
from the prison. (ECF Nos. 18, 22.) Respondent complied by filing records marked as Exhibits A-H.
Respondent otherwise would not in the ordinary course have any role in filing evidence on petitioner’s
behalf. Petitioner’s only stated reason for asserting respondent withheld evidence is his disagreement
with the undersigned’s analysis within the dismissal decision.

8 Petitioner appears to be arguing that the decision was not “on the merits,” because he disagrees that

the decision accounted for all of the evidence and disagrees that he was given a full and fair opportunity
to present his case. The dismissal decision explicitly did reach the merits with respect to the one issue
that was found to be dispositive.

9 A motion for review is a procedure through which a party may challenge a special master’s decision

before a judge of the U.S. Court of Federal Claims. Procedures and requirements for a motion for review
are set forth in Vaccine Rules 23-28. A motion for review must be accompanied by a memorandum of
objections and must filed within 30 days of issuance of the decision to be reviewed. No motions for
extension of time are permitted. See Vaccine Rule 36(b)(3) and Vaccine Rules 23(b).

8
(6) Any other reason that justifies relief.

The Federal Circuit has indicated that RCFC 60(b) is a remedial provision that
must therefore be liberally construed. Patton v. Sec’y of Health & Human Servs., 25
F.3d 1021, 1030 (Fed. Cir. 1994). However, because judgments are intended to be
final, relief under RCFC 60(b) requires “extraordinary circumstances,” Kenzora v. Sec’y
of Health & Human Servs., 126 Fed. Cl. 588, 595-96 (2016), and “should be used
sparingly,” G.G.M. ex rel. Mora v. Sec’y of Health & Human Servs., No. 13-421V, 2015
WL 1275389, at *2 (Fed. Cl. Spec. Mstr. Feb. 27, 2015), motion for review denied, 122
Fed Cl. 199 (2015), aff’d, 673 F. App’x 991 (Fed Cir. 2016). The balancing of these
considerations is generally a discretionary determination. DiMasi v. Sec’y of Health &
Human Servs., No. 2022-1854, 2023 WL 4697122, at *7 (Fed. Cir. July 24, 2023).

RCFC 60(c) further requires that any motion pursuant to RCFC 60(b) must be
made “within a reasonable time” and more specifically, for subsections (1) through (3),
“no more than a year after the entry of the judgment.” Subsection (6), which is not
subject to this one-year limitation, is the broadest grant of authority to provide relief in
order to achieve justice; however, it “may be successfully invoked ‘only when Rules
60(b)(1) through (b)(5) are inapplicable.’” DiMasi, 2023 WL 4697122, at *8 (quoting
Kemp v. United States, 596 U.S. 528, 533 (2022)); see also JGB Enterprises, Inc. v.
United States, 71 Fed. Cl. 468, 472-73 (2006) (explaining that “plaintiff’s allegations
cannot support the simultaneous pursuit of relief under RCFC 60(b)(1) and (b)(6)
because the provisions are mutually exclusive and because plaintiff’s entire amended
motion is properly construed as seeking relief for ‘excusable neglect’”). Application of
RCFC 60(b)(6) is only appropriate where extraordinary circumstances are present and
substantial rights of a party would be violated absent relief. Kollasch ex rel. Q.K. v.
Sec’y of Health & Human Servs., No. 10-717V, 2021 WL 1728714, at *4 (Fed. Cl. Spec.
Mstr. Apr. 6, 2021) (citing Freeman v. Sec’y of Health & Human Servs., 35 Fed. Cl. 280,
281 (1996)); Coleman v. Sec’y of Health & Human Servs., No. 06-0710V, 2011 WL
6828475, at *4 (Fed. Cl. Spec. Mstr. Dec. 7, 2011)). A substantial right of a petitioner
may be harmed where the petitioner has been deprived of a full and fair opportunity to
be heard on the merits. Kollasch, 2021 WL 1728714, at *4.

Under RCFC 59, the court may grant a new trial or motion for reconsideration
and may reopen judgment to facilitate necessary additional proceedings. RCFC 59
permits the court in its discretion to grant a party’s motion where there has been an
intervening change in controlling law, newly discovered evidence, or a clear factual or
legal error the correction of which would prevent manifest injustice. Nyan v. United
States, 154 Fed. Cl. 463, 466 (2021) (citing Biery v. United States, 818 F.3d 704, 711
(Fed. Cir. 2016)). Motions for reconsideration under RCFC 59 are subject to a
“rigorous” standard, under which the moving party must demonstrate “extraordinary
circumstances which justify relief.” Caldwell v. United States, 391 F.3d 1226, 1235 (Fed.

9
Cir. 2004) (quoting Fru-Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 300 (1999),
aff’d, 250 F.3d 762 (Fed. Cir. 2000)). Reconsideration is not intended to permit a party
to reassert arguments that have already been considered. Nyan, 154 Fed. Cl. at 466.
Relief under Rule 59 generally requires action within 28 days of judgment; however,
subsection (b)(2) allows that a motion for a new trial or for reconsideration may be filed
up to two years after final disposition of a suit if the basis of the motion is a “showing of
satisfactory evidence, cumulative or otherwise, that any fraud, wrong, or injustice has
been done to the United States.” Otherwise, as delineated above, RCFC 60(b)(2)
allows for reopening of judgment based on “newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to move for a new trial
under RCFC 59(b).”
IV. Discussion

a. Many of Petitioner’s Arguments are Untimely

i. RCFC 59
Petitioner asserts that reconsideration is appropriate based on RCFC 59.
Reconsideration under Rule 59 may be granted to prevent manifest injustice; however,
as explained above, application of this rule generally requires action within 28 days of
judgment. Petitioner has not filed his motion within 28 days of judgment. RCFC
60(b)(2) separately provides that a motion pursuant to RCFC 59 may be filed beyond
this 28-day period in the case of newly discovered evidence; however, that provision is
itself subject to a one-year limitation under RCFC 60(c). Petitioner also did not file his
motion within one year of the entry of judgment. In instances of fraud against the United
States, a motion pursuant to RCFC 59 may be filed up to two years from final
disposition, but petitioner asserts fraud against himself, not the United States.
Accordingly, petitioner cannot seek relief pursuant to RCFC 59.
ii. RCFC 60(b)(1)-(3)
At various points in his motion papers, petitioner references reasons, such as his
homelessness and the failure of his parole officer to forward his mail, for why his
inaction should be excused. He asserts that he has only recently become aware of new
evidence insofar as he has sought medical follow-up. And he asserts that prison
officials committed fraud by changing his medical records. These allegations seek to
touch on each of the first three bases for relief from judgment under RCFC 60(b).
However, as explained above, RCFC 60(c) requires that any motion pursuant to RCFC
60(b) must be made “within a reasonable time” and more specifically, for subsections (1)
through (3), “no more than a year after the entry of the judgment.” While application of
RCFC 60(b) generally involves a discretionary balancing of factors, “the one year
limitation imposed on motions brought under subsections (1), (2), and (3) of the Rule is
considered ‘an absolute bar to motions filed after that period.’” Freeman, 35 Fed Cl. at
283 (quoting United States v. Berenguer, 821 F.2d 19, 21 (1st Cir. 1987)). Petitioner

10
filed the instant motion more than one year after judgment entered. Accordingly,
petitioner cannot seek relief under RCFC 60(b)(1)-(3).
b. Even if timely, petitioner’s allegations of fraud and newly available
evidence do not support relief under RCFC 60(b)(2)-(3) or RCFC 59
Setting the timeliness issue aside, it should also be noted that petitioner’s
allegation regarding amendment to his medical records is unsupported. Petitioner’s
motion does not identify any piece of evidence, newfound or otherwise, that
demonstrates his medical records were altered. He only offers his assertion that
alterations would explain the aspects of his medical records that contradict his claim.
However, this is not a new assertion. This allegation was reflected in the records that
were filed in this case. The issue was accounted for in the decision dismissing his case,
but did not explain all of the relevant notations. (ECF No. 60, n. 11.) And, in any event,
even if petitioner did substantiate that prison officials altered his prior medical records,
he has not provided any evidence that would support fraud by the respondent in this
case, leaving RCFC 60(b)(3) entirely inapplicable.10
To the extent petitioner has suggested that he intends to seek additional medical
follow up that would refute his prior medical records, this is not reasonably possible. No
medical exam conducted now could discern the onset of a years-long course of
adhesive capsulitis to the degree of precision petitioner would need to establish that his
adhesive capsulitis arose shortly after, but not several months before, his vaccination.
Any medical opinion rendered at this late date would effectively amount to acceptance
of the history of post-vaccination onset provided by petitioner, which would be unlikely to
outweigh the contemporaneous medical records.11 The dismissal decision had

10 In his reply, petitioner argues that he did not have access to his own files in order to dispute any factual

inaccuracies. (ECF No. 66, p. 10.) While it is true that respondent, rather than petitioner, filed the
complete records into evidence in this case, petitioner offers at best an incomplete explanation of the
circumstances. Petitioner did file some records with his petition. (ECF No. 1-2.) Moreover, as explained
in the dismissal decision, the records in evidence reflect that petitioner did request that prison officials
remove information relating to a specific incident from his medical records, contending it related to a
different prison with the same surname. (Ex. A, p. 437.) Thus, without minimizing the challenges of
litigating a case as an incarcerated individual, the record of the case confirms that petitioner was
reviewing and disputing the contents of his records to at least some degree during his incarceration. As
previously explained, petitioner’s assertion that respondent withheld evidence in this case has no
apparent factual basis. (ECF No. 66, p. 10; see supra note 7.)

11 “[F]or many medical symptoms or events – such as a headache or other pain, dizziness, nausea,

vomiting – the patient’s or a parent’s testimony may be the best, or only, direct evidence of their
occurrence. Medical records related to those symptoms would likely be based on the statements of those
who experienced them.” James-Cornelius ex rel. E.J. v. Sec’y of Health & Human Servs., 984 F.3d 1374,
1380 (Fed. Cir. 2021). “Medical records, in general, warrant consideration as trustworthy evidence. The
records contain information supplied to or by health professionals to facilitate diagnosis and treatment of
medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium.
These records are also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed Cir. 1993). Thus, more remote histories of present illness in
conflict with contemporaneous medical records are generally given less weight than the earlier records.
E.g., Anderson v. Sec’y of Health & Human Servs., No. 20-195V, 2022 WL 17484352, at *10 (Fed. Cl.

11
concluded that the contemporaneous medical records were inadequate to distinguish
petitioner’s pre- and post-vaccination symptoms, which were diagnosed as adhesive
capsulitis in both instances. (ECF No. 60, p. 7.) In any event, petitioner has not
established that seeking medical follow up at this point would constitute uncovering
“[n]ewly discovered evidence that, with reasonable diligence, could not have been
discovered” up to this point.
The records petitioner has attached to his motion do not call into question the
prior adjudication of his case. Petitioner cites the fact that these records state that
petitioner’s adhesive capsulitis was related to his vaccination. (ECF No. 65-2, pp. 1-2.)
However, the notations he references are all within the “subjective” or history portion of
the record, meaning the physicians merely recorded what petitioner reported was his
history. None of the resulting assessments contain any medical opinion that would
support his allegations. Petitioner represents in his motion that his current provider is
willing to write a statement that his cervical spinal condition is separate from his
shoulder condition (Id. at 2), but the decision dismissing this case concluded that the
pre-vaccination onset of his alleged adhesive capsulitis was itself incompatible with
vaccine-causation, rather than turning on whether petitioner’s shoulder symptoms were
otherwise due to his cervical spinal condition (ECF No. 60, n. 10).
Accordingly, even if timely, petitioner’s arguments with respect to RCFC 60(b)(2)-
(3) and RCFC 59 would be without merit. An overarching theme of petitioner’s
arguments on these points is that it was not realistic to expect him to be able to
challenge respondent’s position while indigent and especially while he was
incarcerated. However, as discussed further below, it must be stressed that the state of
the record at the time of dismissal was a direct consequence of petitioner’s own failure
to prosecute rather than any limitations of his incarceration. Had he maintained contact
with the court, petitioner could have continued prosecuting his case following his
release from prison. In fact, the decision ultimately dismissing this case was not issued
until five months after his release.
c. Neither Excusable Neglect Nor Extraordinary Circumstances Are
Present to Support Relief Pursuant to Either RCFC60(b)(1) or (6)
The crux of petitioner’s motion is his assertion that his particular circumstances
following release from Waupun Correctional Institution either justify excusable neglect
under RCFC 60(b)(1) or extraordinary circumstances under RCFC 60(b)(6). Because

Spec. Mstr. Nov. 10, 2022) (observing that “[g]iven petitioner’s earlier vaccination and treatment records,
the more remote history she provided the orthopedist is entitled to less weight.”); see also R.K. v. Sec’y of
Health & Human Servs., No. 03-632V, 2015 WL 10936124, at *76 (Fed. Cl. Spec. Mstr. Sept. 28, 2015)
(holding that more remote histories of illness do not have sufficient indicia of reliability to be credited over
conflicting contemporaneous medical records and earlier reported histories), motion for review denied,
125 Fed. Cl. 57 (2016), aff’d, 671 F. App’x 792 (Fed. Cir. 2016); Vergara v. Sec’y of Health & Human
Servs., No. 08-882V, 2014 WL 2795491, at *4 (Fed. Cl. Spec. Mstr. May 15, 2014) (“Special Masters
frequently accord more weight to contemporaneously-recorded medical symptoms than those recorded in
later medical histories, affidavits, or trial testimony.” (emphasis added)).

12
his claim under subsection (1) is time-barred, the application of RCFC 60(b)(6) is
dispositive. Subsection (6) is not subject to the specific one-year time limit for
subsections (1) through (3) and it is considered a “grand reservoir” of equitable power.
M.D. ex rel. Dilascio v. Sec’y of Health & Human Servs., 153 Fed. Cl. 544, 559 (2021)
(quoting Lazare Kaplan Int’l, Inc. v. Photoscribe Techs., Inc., 714 F.3d 1289, 1295 (Fed.
Cir. 2013)). However, it requires a demonstration of “extraordinary circumstances” that
go beyond the more commonplace occurrences addressed by the other subsections of
Rule 60. E.g., DiMasi, 2023 WL 4697122, at *8 (explaining that subsection (6) is
available only if subsections (1) through (5) are inapplicable).)
I previously recognized in my order to show cause that “petitioner’s release from
prison represents a unique and potentially challenging circumstance.”12 (ECF No. 58, p.
4.) In that respect, petitioner had, and still has, my sympathy for all of the difficulties he
faced upon his release from prison, especially his homelessness. Thus, I do not take
petitioner’s motion lightly. However, sympathy alone cannot dictate the outcome of
petitioner’s motion. The question presented by petitioner’s motion is whether his
circumstances represent an “extraordinary circumstance” that would justify relief
pursuant to RCFC 60(b)(6). For the reasons discussed below, I conclude that they do
not. In fact, my conclusion is that the facts of this case do not even rise to a level that
would have supported excusable neglect had petitioner’s claim under RCFC 60(b)(1)
not been time-barred.
Petitioner suggests in his motion that he was justified in failing to maintain
contact with the court because he thought he had moved for a stay and “assumed” that
he could notify the court of his intent to continue his case at a time of his choosing.
(ECF No. 65, p. 1.) However, this is not a reasonable interpretation of the procedural
history of the case.
Petitioner is referring to the Status Report he filed on September 7, 2021. (ECF
No. 47.) In that status report, petitioner stated that “[p]etitioner is scheduled for release
on Nov. 16th 2021 and he intends to get a complete and accurate cause of his other
medical issues as to dispute or provide objective evidence that would support a finding
in my favor.” (Id.) In light of petitioner’s status report, I issued the Scheduling Order of
September 9, 2021. (ECF No. 48.) That order specified that “I am construing
petitioner’s status report as a motion to stay the case pending his release from prison.”
(Id. (emphasis added).) Thus, petitioner was advised in this order that his stay request,
which was not even granted, was only to be entertained with respect to his duty to
prosecute during his remaining incarceration. But in any event, I further explained that
Petitioner is also advised that he will have a continuing obligation to
maintain contact with the court and that any order granting his motion to
stay will require petitioner to provide updated contact information where he

12 That is, unique in that the process of reentering society after imprisonment is a distinct circumstance

not necessarily comparable to what other petitioners are experiencing as they prosecute their claims.

13
can be reached following his release from prison. Failure to provide current
and accurate contact information will not prevent this case from being
involuntarily dismissed should petitioner fail to prosecute.
(Id. (underlining in original, bolding omitted).)
While petitioner denies receipt of some subsequent orders, he does not deny
having received my Scheduling Order issued September 9, 2021 that cautioned him to
maintain up to date contact information. (ECF No. 48.) Thus, in the instant motion,
petitioner acknowledges that he “knows that he did have an obligation to keep the Court
notified.” (ECF No. 65, p. 2.) Therefore, the fact that petitioner alleges that he did not
receive my subsequent orders of November and December of 2021, or the decision of
April 2022, is not dispositive as this is ultimately a product of his own failure to provide
sufficient contact information to the court. E.g., Kompothecras v. Sec’y of Health &
Human Servs., No. 02-0110V, 2013 WL 1881022, at *7 (Fed. Cl. Spec. Mstr. Jan. 29,
2013) (finding that counsel’s failure to provide updated contact information does not
support a finding of excusable neglect that would permit equitable relief under RCFC
60(b)(1)); Koopman v. United States, 151 Fed. Cl. 336, 339-40 (2020) (finding a failure
by pro se litigants to provide current contact information and failure to respond to
subsequent orders supports involuntary dismissal for failure to prosecute), motion for
reconsideration granted in part, 151 Fed. Cl. 751 (2021).
The fact that petitioner’s parole officer did not timely forward petitioner’s mail to
him, while unfortunate, also does not affect the outcome. The parole office was never
identified by petitioner as a means of contacting him and petitioner never had any
reasonable expectation that the parole officer would keep him informed of the status of
his vaccine case. Rather, the Order to Show Cause explained:
[P]etitioner has not provided updated contact information since his release
from prison; however, a review of the Wisconsin Department of Corrections
Offender Locator indicates that he is under active community supervision
with Unit 712 of the Department of Corrections parole office. Accordingly,
the clerk is directed to mail a copy of this order to both petitioner’s last
known address at Waupun Correctional Institute as indicated on the docket
of this case and [the parole office].
(ECF No. 58, p. 5.) In other words, entirely unbeknownst to petitioner, the court sua
sponte used enhanced measures to try to overcome petitioner’s failure to provide
current contact information. The fact that this added effort failed does not alter the
nature of the issue – petitioner knowingly failed to maintain appropriate contact with the
court. Thus, the parole office’s failure to forward the undersigned’s orders is simply a
further symptom of petitioner’s own inaction.
The parole officer’s failure to provide petitioner his mail does not explain why
petitioner did not himself provide updated contact information as directed by my prior
order or otherwise take appropriate steps to prosecute his case, or at a bare minimum

14
understand its status. Contrary to what is suggested in the instant motion, the
procedural history confirms that at the time petitioner stopped communicating with the
court he understood his claim was potentially subject to dismissal. In particular, the
representations in petitioner’s motion indicate that the last order petitioner received was
my order holding petitioner’s own motion to dismiss in abeyance for only 30 days.13
(ECF No. 51.)
Petitioner’s most sympathetic argument is that following his release from prison
he was homeless. However, standing alone, this does not support his motion. A
number of courts have held that the fact of homelessness does not in itself support relief
under FRCP 60(b)(1) for excusable neglect. Modesitt v. Wexford Med., No. 1:21-cv-
1711, 2023 WL 348270 (S.D. Ind. Jan. 20, 2023) (explaining that “[t]he court accepts as
true that Mr. Modesitt experienced homelessness after his release from incarceration.
But at no time did he contact the Court with a phone number or email address or
request an extension of pretrial deadlines on account of his homelessness before
dismissal of this case.”); Figueroa v. City of Corpus Christi, No. 2:15-CV-339, 2016 WL
7228553 (S.D. Tex. Dec. 14, 2016) (stating that “[b]eing homeless and a pro se litigant
alone is not authority to reinstate the complaint”); Turner v. Nev. Dep’t of Corr., No. 2:13-
cv-1740, 2016 WL 4203818, at * 4 (explaining that “it was not until April 2016 – after he
had been re-arrested and jailed – that he bothered to discover what had transpired in
his case. While I am sympathetic that Turner is a pro se plaintiff with pauper status
whose mail was returned to the court because he was homeless for three months, that
still leaves four months where he had shelter but ignored this case.” (footnote omitted)),
aff’d, 695 F. App’x 336 (mem) (9th Cir. 2017); see also Harris v. Emanuele, 826 F. App’x
567, 569 (7th Cir. 2020) (explaining that “even if Harris had no new mailing address
after the fire, he should have told the court that his old address was no longer valid. But
he did not. . . . Harris’s inability to receive mail did not relieve him of his obligation to
monitor the court’s docket and thereby respond promptly to the dismissal of his case.”)
If homelessness does not substantiate excusable neglect, then a fortiori it is not
compelling without more as evidence of extraordinary circumstances.14 Moreover, there

13 Petitioner’s final filing prior to the entry of judgment was his motion to withdraw his motion to dismiss.

(ECF No. 56.) To be clear, my order of October 15, 2021, did not specifically require petitioner to file a
motion to withdraw his motion to dismiss, only to inform the court if he wished to withdraw the motion to
initially avoid involuntary dismissal. (ECF No. 54.) However, the prayer for relief included in petitioner’s
follow up filing (styled as a “status report”) was “[f]or an order granting this motion to continue this claim.”
(ECF No. 56.) Thus, the filing was docketed as a motion to withdraw the motion to dismiss. In his filing,
petitioner also specifically asked for further guidance on how to proceed with his claim. (Id.) Therefore, it
is patent on the face of his last filing prior to entry of judgment that petitioner understood at that time both
that his motion to voluntarily dismiss remained pending and that he did need to continue prosecuting the
claim.

14 I do note that in Checo v. Shinseki, a case cited by petitioner, the Federal Circuit did accept

homelessness as an extraordinary circumstance in the context of equitable tolling. 748 F.3d at 1378-79.
Importantly, however, that acceptance was based on the respondent’s stipulation of the point specific to
that case.

15
are several factors that counsel against accepting the fact of petitioner’s homelessness
as dispositive of any “extraordinary circumstance” in this particular case. Petitioner
does not provide any details regarding the length of his homelessness or the specific
circumstances of his homelessness. In fact, petitioner does not indicate anything more
than that he lacked a mailing address at which he could receive physical mail. (ECF
No. 65, p. 1.) However, petitioner acknowledges in his motion that he was aware of his
obligation to maintain contact with the court and further asserts that he did have the
wherewithal to telephone the court on at least one occasion. (Id. at 1-2.) Yet, as
previously noted, petitioner’s representation without further detail that he made a single
phone call to the court over a two-year period is not strong evidence of diligence. (See
supra n. 2.) Further, although he asserts having no physical address, he does indicate
that he has an unspecified e-mail address through which he would have been capable
of receiving information from the court had he acted more diligently. (ECF No. 65, p. 1;
see also supra note 2.)
d. Petitioner’s Claim under RCFC60(b)(6) is Also Untimely in that it was
Not Filed Within a Reasonable Period of Time After Judgment
Even in the absence of any specific time limit, motions pursuant to RCFC 60(b)
must be made “within a reasonable time.” However, petitioner in this case waited over
one year and eight months to seek relief from judgment. Even after considering all of
petitioner’s arguments above, I cannot conclude that this represents a reasonable
timeframe. Prior to the instant motion, petitioner’s last filing was his motion to withdraw
his motion to dismiss, which was filed on October 28, 2021, more than two full years
before he sought relief from judgment. (ECF No. 56.) The judgment itself was not
issued until approximately six months after his last contact with the court.
Although petitioner notes that he did not specifically become aware of the fact of
the judgment until February of 2024, that is a consequence of petitioner’s own inaction,
as discussed above. Moreover, petitioner was at all times aware that he had a
continuing obligation to prosecute his case and that he had failed to maintain contact
with the court during that period. Thus, petitioner should have been aware of the risk of
dismissal and acted accordingly. Ultimately then, petitioner’s own failure to inform
himself of the status of his case does not serve as any justification for his over 20-month
delay in seeking to reopen judgment. Therefore, even if one or more of the
circumstances cited by petitioner could potentially be viewed as representing an
extraordinary circumstance that prevented him from initially avoiding entry of the
judgment dismissing the case, I would still deny petitioner’s motion based on his
inordinate delay in filing this motion.
e. Petitioner’s Reliance on Equitable Tolling is Unavailing
Finally, I note that petitioner’s reference to equitable tolling does not change the
outcome. “When the ‘rules invoked’ – whether criminal or civil – ‘show a clear intent to
preclude tolling, courts are without authority to make exceptions’ . . . .” United States v.

16
Williams, 56 F.4th 366, 372 (4th Cir. 2023) (quoting United States v. Marsh, 944 F.3d
524, 531 (4th Cir. 2019)). Because RCFC 6(b)(2) forbids the court from extending time
under either RCFC 59(b) or 60(b), this “inflexible treatment” precludes any discretion to
allow equitable relief. Accord Williams, 56 F.4th at 372 (denying equitable relief under
FRCP 60(b) due to FRCP 6(b)(1)); see also Freeman, 35 Fed. Cl. at 283 (characterizing
the one-year limitation of RCFC 60(c) as an “absolute bar” to motions filed after that
period). Thus, the equitable tolling petitioner seeks is not available in this context.
In any event, as petitioner acknowledges in his motion, the availability of
equitable tolling is predicated on both extraordinary circumstances and diligence in
pursuing one’s rights. Checo, 748 F.3d at 1378. For all the reasons discussed above, I
have concluded that petitioner has demonstrated neither. Moreover, to the extent
petitioner specifically urges a “stop clock” approach to his filing obligation, he has not
presented sufficient factual details in his motion to identify any specific period of tolling.
V. Conclusion
For all the reasons discussed above, petitioner’s motion is DENIED.

IT IS SO ORDERED.

s/Daniel T. Horner
Daniel T. Horner
Special Master

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10735239. Public record. Not legal advice.