Donovan v. Secretary of the Department of Health & Human Services

28 Fed. Cl. 459, 1993 U.S. Claims LEXIS 46, 1993 WL 174876
CourtUnited States Court of Federal Claims
DecidedMay 10, 1993
DocketNo. 90-997V
StatusPublished
Cited by8 cases

This text of 28 Fed. Cl. 459 (Donovan v. Secretary of the Department 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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Donovan v. Secretary of the Department of Health & Human Services, 28 Fed. Cl. 459, 1993 U.S. Claims LEXIS 46, 1993 WL 174876 (uscfc 1993).

Opinion

ORDER

NETTESHEIM, Judge.

This matter is before the court on a special master’s assignment of petitioners’ motion to vacate judgment filed under RCFC Rule 60(b). Respondent requests that petitioners’ motion be denied. Argument is deemed unnecessary.

FACTS

On September 14, 1990, Charles A. and Rose A. Donovan (“petitioners”), as parents of Tralane Donovan, filled a petition in the United States Claims Court alleging that Tralane suffered symptoms and manifestations of an encephalopathy and of a residual seizure disorder within three days after he received diphtheria-pertussis-tetanus vaccinations on April 24, 1979, and June 14, 1979. Petitioners sought compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-l -300aa-34 (1988), as amended by several public laws, codified in 42 U.S.C.A. §§ 300aa-l -300aa-34 (West Supp.1992) (the “Vaccine Act”).

After discussing thoroughly the deficiencies in the petition during two comprehensive and substantive conferences with the parties, Special Master John F. Edwards determined that petitioners had failed to establish a prima facie case and subsequently entered his decision denying entitlement. Donovan v. Secretary of DHHS, No. 90-997V (Cl.Ct.Spec.Mstr. Jan. 23, 1992). The special master directed the Clerk of the Court to enter judgment dis[461]*461missing the petition. Since neither party sought review of the decision on entitlement as provided by RCFC Appendix J, the Clerk entered judgment on February 25, 1992.1

On January 4, 1993, petitioners submitted a RCFC Rule 60(b) motion to vacate judgment.2 On March 15, 1993, the special master directed the Clerk to assign petitioners’ motion to vacate judgment to a Court of Federal Claims judge.

DISCUSSION

The Court of Federal Claims’ jurisdiction in vaccine cases is defined by the Vaccine Act itself. See UNR Industries, Inc. v. United States, 962 F.2d 1013, 1025 (Fed.Cir.), cert. granted, — U.S. —, 113 S.Ct. 373, 121 L.Ed.2d 285 (1992). Section 12(e) of the Vaccine Act, entitled “Court Jurisdiction,” delimits the scope of the court’s jurisdiction. See Widdoss v. Secretary of DHHS, 989 F.2d 1170-1177 (Fed.Cir.1993) (“[T]he claims court’s jurisdiction to hear appeals under the Vaccine Act is ‘unambiguously circumscribed by the plain language of [section 300aa-12(e)(2) ]. . . .’”) (quoting Wilson v. Secretary of DHHS, 23 Cl.Ct. 169, 171 (1991), aff'd, 960 F.2d 156 (Fed.Cir.1992) (Table)). That provision of the Vaccine Act conditions the court’s jurisdiction on the filing of a motion for review within 30 days after the issuance of a special master’s decision. See 42 U.S.C.A. § 300aa-12(e). When a party does not comply with the 30-day time period for filing a motion for review with the Court of Federal Claims, “the clerk’s entry of judgment ends the matter____”, and the party thus waives the right of appeal to the Court of Federal Claims. Grimes v. Secretary of DHHS, 988 F.2d 1196-1198 (Fed.Cir.1993).

In this case petitioners did not seek a timely review in the Court of Federal Claims. Upon expiration of the 30-day time limit, the Clerk entered judgment as required by statute. Having taken no action within the statutory time limit for appeal, petitioners have no option to seek review in this court.

The court also lacks jurisdiction to consider petitioners’ motion to vacate judgment as filed under RCFC Rule 60(b). In Widdoss v. United States, 24 Cl.Ct. 547, 552 (1991), rev’d, 989 F.2d 1170, the trial court granted petitioners’ Rule 60(b) motion for relief from judgment reflecting its view that such relief is “clearly allowable under the Vaccine Rules and in accordance with the spirit and purpose of the Vaccine Act.” (Citation omitted.) However, since the issuance of the special master’s order of referral, the United States Court of Appeals for the Federal Circuit reversed the Court of Federal Claims’ acquiescence to jurisdiction in that case.

The 30-day time period is jurisdictional, so application of RCFC Rule 60(b) to authorize the court to review petitioners’ motion is of no effect since a court rule cannot be used to escape a jurisdictional limitation. Widdoss, at 1177. Finally, it is settled law in the Federal Circuit that RCFC Rule 60(b) “cannot be employed to toll, extend, or waive the time period in which to appeal.” Id., at 1178.

The special master referred petitioners’ motion to the Court of Federal Claims because the rules governing the procedures before the Office of the Special Master did not provide for a Rule 60(b) to offer a petitioner relief from judgment. The withholding of such authority was calculated. When the Claims Court promulgated the rules for the Office of Special Masters, it confronted an unprecedented type of review embodied in the Vaccine Act. As originally enacted, the Vaccine Act provided for two levels of factfinding. As administrative factfinder, the special master ini[462]*462tially found facts; the Claims Court was required to review them de novo. See Davis v. Secretary of DHHS, 19 Cl.Ct. 134, 140-41 (1989); see also Bradley v. Secretary of DHHS, 991 F.2d 1570, 1572 (Fed.Cir.1993) (Plager, J., concurring in part and dissenting in part). Further review by the Court of Appeals for the Federal Circuit presumably was to be administered under the arbitrary and capricious standard.

Congress amended the Vaccine Act to restrict the Court of Federal Claims’ review consistent with the arbitrary and capricious standard. 42 U.S.C.A. § 300aa-12(e)(2); see Hale v. Secretary of DHHS, 22 Cl.Ct. 403, 415 (1991). This development regularized the review consistent with judicial review of other administrative factfin-ders. This solution posed a problem to the appeals court, recently addressed at length in Bradley, 991 F.2d at 1574 n. 3 & 1576 n. 4 (Plager, J., concurring in part and dissenting in part, at 1-6). The conundrum presented is whether appellate court review of a Court of Federal Claims judgment is de novo, which devolves to reviewing the decision of a special master directly to see whether it was arbitrary and capricious, or whether the review is based on the arbitrary and capricious standard. This seemingly semantic distinction is of significant practical import to the fisc, on the one hand, and to the Court of Federal Claims, on the other. The interests of the taxpayer are implicated, because the taxpayer is paying for petitioners’ judicial review through the appellate process. It is altogether unprecedented that Congress would fashion an appeals system that encourages successive redundant judicial review, while providing a mechanism for reimbursing the attorneys’ fees of private parties employing that process. 42 U.S.C.A. § 300aa-15(e)(1); Hines v. Secretary of DHHS, 26 Cl.Ct. 114 (1992).

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28 Fed. Cl. 459, 1993 U.S. Claims LEXIS 46, 1993 WL 174876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donovan-v-secretary-of-the-department-of-health-human-services-uscfc-1993.