Case: 21-1986 Document: 38 Page: 1 Filed: 02/09/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT E. FEISS, M.D.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-1986
______________________
Appeal from the United States Court of Federal Claims
in No. 1:17-cv-01263-LAS, Senior Judge Loren A. Smith.
______________________
Decided: February 9, 2022
______________________
ELIZABETH KEY, Nossaman LLP, Sacramento, CA, ar-
gued for plaintiff-appellant. Also represented by KURT W.
MELCHIOR, San Francisco, CA.
GALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
LOREN MISHA PREHEIM.
______________________
Case: 21-1986 Document: 38 Page: 2 Filed: 02/09/2022
2 FEISS v. US
Before TARANTO, HUGHES, and STOLL, Circuit Judges.
PER CURIAM.
In 2017, Robert E. Feiss brought the present action
against the United States in the Court of Federal Claims
(Claims Court) under the Tucker Act,
28 U.S.C. § 1491, al-
leging that the government denied him certain payments—
incentive payments for primary care practitioners—to
which he was entitled under 42 U.S.C. § 1395l(x). In May
2018, the Claims Court dismissed the case for lack of sub-
ject-matter jurisdiction, concluding that § 1395l(x)(4) pre-
cluded judicial review of the government’s adverse
determination concerning his qualification as a primary
care practitioner. Feiss v. United States,
138 Fed. Cl. 237,
241 (2018). Dr. Feiss did not appeal that decision.
In February 2021, he filed a motion to vacate the May
2018 dismissal under Rule 60(b)(6) of the Rules of the U.S.
Court of Federal Claims, contending that the Supreme
Court’s decision in Maine Community Health Options v.
United States,
140 S. Ct. 1308 (2020), represented an inter-
vening change in law that, combined with other inequities,
constituted the “extraordinary circumstances” necessary to
warrant Rule 60(b)(6) relief. J.A. 102–09; J.A. 124–26; see,
e.g., Gonzalez v. Crosby,
545 U.S. 524, 535 (2005). The
Claims Court denied the motion, finding that Maine Com-
munity was not applicable. Feiss v. United States, No. 17-
1263,
2021 WL 2272421, at *1–2 (Fed. Cl. Apr. 14, 2021).
Dr. Feiss now appeals.
We lack jurisdiction to review the Claims Court’s May
2018 dismissal for lack of jurisdiction, because Dr. Feiss
did not timely appeal that dismissal and because “an ap-
peal from denial of Rule 60(b) relief does not bring up the
underlying judgment for review.” Browder v. Dir., Dep’t of
Corr.,
434 U.S. 257, 263 n.7 (1978); see also Barnes v.
United States, 747 F. App’x 860, 861 (Fed. Cir. 2019). We
have jurisdiction only to consider the Rule 60(b)(6) denial,
which we evaluate for abuse of discretion. Progressive
Case: 21-1986 Document: 38 Page: 3 Filed: 02/09/2022
FEISS v. US 3
Indus., Inc. v. United States,
888 F.3d 1248, 1255 (Fed. Cir.
2018). We see no abuse of discretion.
We agree with the Claims Court that Maine Commu-
nity made no change in applicable law that is material to
the decisive basis for the 2018 dismissal—the application
of the preclusion-of-review provision, § 1395l(x)(4), con-
cerning government determinations of status as a qualify-
ing primary care practitioner. Maine Community did not
involve that provision or any other preclusion-of-review
provision, and what it did involve is too far afield to make
the decision in that case a material change in law for pre-
sent purposes. See 140 S. Ct. at 1320–27. Because Dr.
Feiss has not established a material change in law, and be-
cause he has made no argument that extraordinary circum-
stances exist independent of the asserted material change
in law, see Feiss Br. 27–34, we affirm the denial of Rule
60(b)(6) relief.
The parties shall bear their own costs.
AFFIRMED
