Argument Preview

Four cases being argued in June at the Federal Circuit attracted amicus briefs. One of those cases is DiMasi v. Secretary of Health and Human Services, a pro se vaccine case. In it, the Federal Circuit will review a determination by the Court of Federal Claims that a “Special Master’s denial of relief from judgment was not an abuse of discretion.” Notably, after the pro se petitioner filed informal briefs, the court issued an order appointing two attorneys to serve jointly as amicus curiae in support of the pro se petitioner’s appeal. Moreover, despite the fact that the petitioner is representing herself, the Federal Circuit has set the case for an oral argument. This is our argument preview.

DiMasi, in her informal brief, first argues the Special Master’s determinations were erroneous because “[s]everal records . . . were missing from [her] file and therefore not considered in the decision.” She further contends “[t]he conclusion that acute small fiber neuropathy (SFN) . . . was pre-existing was false.” Additionally, she asserts, the Special Master did not consider that her “record clearly supports a vaccine reaction.” She also argues “[t]he Special Master admits that [her] attorney did not address [her] pre-vaccination history during [her] case but opines that this is not grounds for abandonment (even though [she] was not represented at all on the issue for which [she] was denied).” She concludes by broadly arguing “[f]acts were determined incorrectly and conclusions were made against the weight of the evidence.”

The government in its response brief argues the “Special Master did not abuse his discretion in denying petitioner’s motion for leave to file additional materials.” The government contends “the Special Master correctly found that the materials did not constitute ‘newly discovered evidence,’ noting that petitioner ‘had ample opportunity to file all of her medical records,’ and that the additional records were ‘mostly accessible’ to her and [her attorney] prior to adjudication.” Additionally, the government points out how “the Special Master concluded that [the] petitioner did not explain what caused the alleged mistake beyond the general allegation that her attorney did not represent her, and determined that the medical records were reasonably within petitioner’s control.” Finally, the government argues, “the Special Master’s determination that [the] petitioner has not demonstrated the extraordinary circumstances necessary for relief under Rule 60(b)(6) is legally sound.”

DiMasi, in her informal reply brief, contends her attorney’s “failure to submit a complete record . . . is certainly an example of egregious/culpable conduct.” She asserts “[t]here is no ‘tactical’ basis for an attorney to not defend his client . . . and no justifiable reason for misinforming a client of her rights.” DiMasi point out, moreover, that “[her] attorney failed to get back to [her] and missed the deadlines for both a Motion for Reconsideration and Review, forfeiting [her] chance to appeal [her] case.” Lastly, she asserts, she “appropriately rel[ied] on Mr. Gold as [her] legal representative, [and] had no reason to doubt his integrity.”

As highlighted above, on January 3, 2023, the Federal Circuit issued an order appointing two attorneys, Joshua Kain Day and Ginger D. Anders. to serve jointly as amicus curiae in support of DiMasi’s appeal.

Anders and Day later filed an amicus brief in support of the appellant and reversal. Their brief argues “the special master’s . . . decision applied the wrong legal standards” and, “under the correct standards, the current record establishes that Ms. DiMasi is entitled to relief from judgment.” It maintains that, “at a minimum, the Special Master abused his discretion by denying relief without a hearing.” And, it contends, the “Special Master’s . . . decision is based on an unsupported presumption of accuracy.”

The government, in a supplemental brief, responds to the amicus brief. The government argues “the type of attorney errors alleged here do not provide a basis for reopening” the case. Specifically, the government asserts, “relief is not available based on an attorney’s failure to raise a particular legal theory to adduce in evidence in a particular way.” According to the government, “the attorney’s factual presentation of the onset of Ms. DiMasi’s post-vaccination neuropathy does not provide a basis for reopening” the case. Additionally, the government contends, “equitable factors support denial.” Lastly, the brief asserts “there is no basis for reopening [the case] based on a purported judicial mistake.”

Anders and Day filed a reply brief. In it, they assert “the legal standards for relief from judgment based on a judicial mistake are largely undisputed.” As a result, they contend, “Ms. DiMasi is entitled to relief from judgment based on a judicial mistake.”

This case will be argued on Monday, June 5. We will report on any developments.