Bouley v. Secretary of Deptartment of Health & Human Services

37 Fed. Cl. 227, 1997 U.S. Claims LEXIS 25, 1997 WL 50613
CourtUnited States Court of Federal Claims
DecidedJanuary 17, 1997
DocketNo. 91-540V
StatusPublished
Cited by1 cases

This text of 37 Fed. Cl. 227 (Bouley v. Secretary of Deptartment of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bouley v. Secretary of Deptartment of Health & Human Services, 37 Fed. Cl. 227, 1997 U.S. Claims LEXIS 25, 1997 WL 50613 (uscfc 1997).

Opinion

OPINION

ANDEWELT, Judge.

I.

In this vaccine action, petitioner, Angie Lynn Bouley (Angie), through her legal representative, Alyce S. Collier, seeks compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-l to - 34 (the Vaccine Act), for injuries Angie allegedly suffered as a result of a DPT (diphtheria, pertussis, tetanus) vaccination administered on November 5, 1981. In an August 23, 1996, decision, the special master dismissed the petition as barred by Section 11(a)(5) of the Vaccine Act. The special master based this dismissal on a California Superior Court action filed by petitioner in 1987 which sought compensation for Angie’s alleged vaccine-related injuries from the vaccine manufacturer and other defendants. Section 11(a)(5) of the Vaccine Act requires a petitioner to choose between relief under the Vaccine Act and civil relief in another court. Petitioner filed the instant action on January 31, 1991, and dismissed her California Superior Court action approximately ten months later, on December 4,1991.

In his August 23,1996, decision, the special master discusses in detail the controlling precedent in the Court of Appeals for the Federal Circuit which interprets Section 11(a)(5).1 Flowers v. Secretary, HHS, 49 F.3d 1558 (Fed.Cir.1995); Weddel v. Secretary of Dept of HHS, 23 F.3d 388 (Fed.Cir.1994); Matos v. Secretary of HHS, 35 F.3d 1549 (Fed.Cir. 1994); Amendola v. Secretary, Dept, of HHS, 989 F.2d 1180 (Fed.Cir.1993). The special master concluded that this precedent demands dismissal of the instant petition for two reasons. First, the special master’s interpretation of Amendola and Matos requires a petitioner to dismiss any civil action for vaccine-related damages that is pending on the effective date of the Vaccine Act, October 1, 1988, within two years after that date, or by October 1, 1990. Petitioner’s California Superior Court action was pending on the effective date of the Vaccine Act, but petitioner did not dismiss that action until December 4, 1991, more than one year beyond the two-year period. Second, the special master’s interpretation of Weddel and Flowers prohibits the filing of a petition under the Vaccine Act if the petitioner has pending a civil action for vaccine-related damages, as petitioner did in the instant case.

The special master rejected petitioner’s alternative argument that the doctrine of equitable tolling applies to the filing conditions set forth in Section 11(a)(5) and that based on application of that doctrine, the instant petition should be deemed timely filed. The special master concluded that the doctrine of equitable tolling does not apply to the filing conditions set forth in Section 11(a)(5) and even if it did, petitioner has failed to make the required factual showing to warrant application of equitable tolling.

In her motion for review, petitioner contends that (1) the special master misinterpreted the Federal Circuit precedent when he concluded that petitioner did not satisfy the requirements of Section 11(a)(5); (2) the [229]*229doctrine of equitable tolling applies and renders the instant petition consistent with the requirements of Section 11(a)(5); and (3) the effective date of Section 11(a)(5) was changed from October 1,1988, to December 1990, and hence the two-year period for dismissing any pending civil actions was extended to December 1992. This court reviews a special master’s factual determinations under an arbitrary and capricious standard and reviews determinations on issues of law on a de novo basis. Weddel, 23 F.3d at 391; Matos, 35 F.3d at 1552; Munn v. Secretary of Dept. of HHS, 970 F.2d 863, 870 & n. 10 (Fed.Cir. 1992). Upon review of the special master’s August 23,1996, decision, the court concludes that the special master’s analysis of the facts and discussion of the pertinent issues of law are thorough and well reasoned.

II.

Petitioner disputes the special master’s interpretation of the Federal Circuit precedent. Petitioner attempts to distinguish Amendola and Matos on the ground that unlike the instant case, the petitioners therein allowed their previously filed civil actions to go to judgment after the effective date of the Vaccine Act. But this factual distinction does not undermine the controlling nature of Amendola and Matos.

In Amendola, the Federal Circuit based its analysis of Section 11(a)(5) on the interaction between subsections (A) and (3). The court explained:

Subsection 11(a)(5)(A) states that if a plaintiff has [a civil action] pending on [the effective date of the Vaccine Act], the plaintiff may at any time within two years of that date or before judgment, whichever occurs first, dismiss the suit and claim under the Act. Subsection (a)(5)(B) states a more sweeping rule on the same point: a plaintiff who has a civil suit pending (the provision does not say pending when) for a vaccine-related injury may not file a petition at all. One way to make sense of these two paragraphs is to read them in reverse — (a)(5)(B) states a general rule barring compensation under the Act if a civil suit has been earlier initiated and is pending on the effective date of the Act (this is the way the Court of Federal Claims read it); (a)(5)(A) states an exception if the suit is promptly terminated (within two years of the effective date of the Act) before judgment.

989 F.2d at 1183. Thus, in Amendola, the Federal Circuit interpreted the exception in Section 11(a)(5)(A) to apply only when the pending civil action is terminated both within two years of the effective date of the Vaccine Act and before judgment.

The Federal Circuit’s analysis in Matos is to the same effect. Therein, the court stated:

[S]ection 300aa-ll(a)(5)(B) states a general rule barring the filing of a petition for compensation under the [Vaccine Act] if the would-be petitioner has a civil action for a vaccine-related injury or death pending on October 1, 1988. Section 300aa-11(a)(5)(A), however, provides an escape hatch for such a would-be petitioner. Under that section, a party who has a civil action for a vaccine-related injury or death pending on October 1, 1988, may file a petition for compensation if, within 2 years after October 1, 1988, and before judgment, the party petitions to have the civil action dismissed.

35 F.3d at 1552 (citations omitted) (emphasis added). Under the reasoning of Amendola and Matos, although petitioner dismissed her California Superior Court action before judgment, petitioner’s failure to dismiss that action within two years after the effective date of the Vaccine Act bars the instant petition.

Petitioner’s effort to distinguish Weddel and Flowers is similarly deficient.

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37 Fed. Cl. 227, 1997 U.S. Claims LEXIS 25, 1997 WL 50613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bouley-v-secretary-of-deptartment-of-health-human-services-uscfc-1997.