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

33 Fed. Cl. 542, 1995 U.S. Claims LEXIS 133, 1995 WL 406536
CourtUnited States Court of Federal Claims
DecidedMay 25, 1995
DocketNo. 91-1447V
StatusPublished
Cited by5 cases

This text of 33 Fed. Cl. 542 (Her 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.

Bluebook
Her v. Secretary of the Department of Health & Human Services, 33 Fed. Cl. 542, 1995 U.S. Claims LEXIS 133, 1995 WL 406536 (uscfc 1995).

Opinion

OPINIONS

ANDEWELT, Judge.

I.

In this action, petitioners, Pha Her and Tang Tao, seek compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (the Vaccine Act), for the death of their son, Bee Her. Petitioners allege that the April 18, 1990, administration of an MMR (Measles, Mumps, and Rubella) vaccination caused their son’s death. On January 23, 1995, the special master issued an order dismissing the petition. Pursuant to 42 U.S.C. § 12(e)(1), petitioners filed a motion in this court seeking review of the special master’s decision, but that motion did not reach the clerk of this court until February 23, 1995, one day beyond the 30-day statutory time period. This action is presently before the court on respondent’s motion to dismiss for lack of jurisdiction on the ground that petitioners’ motion for review is untimely.

Section 12(e)(1) of the Vaccine Act provides, in pertinent part: “Upon issuance of the special master’s decision, the parties shall have 30 days to file with the clerk of the United States Court of Federal Claims a motion to have the court review the decision.” In Raspberry v. Secretary, HHS, 32 Fed.Cl. 777 (1995), this court concluded that the 30-day statutory time period is subject to the doctrine of equitable tolling. In its motion to dismiss, respondent argues that the [543]*543Section 12(e)(1) period is not subject to equitable tolling and, in any event, that the material facts of the instant case do not support the application of equitable tolling.

II.

As explained in Raspberry, id. at 779, the Supreme Court in Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 458, 457-58, 112 L.Ed.2d 435 (1990), concluded that there is a presumption that equitable tolling is available in suits against the federal government. Such a presumption is overcome when the statutory scheme demonstrates that Congress intended the time period specified in the statute to be absolute and not subject to tolling. Id.

In its motion to dismiss, respondent relies upon Section 12(e)(3) to support its contention that Congress intended the 30-day period in Section 12(e)(1) to be absolute and not subject to equitable tolling. Section 12(e)(3) provides: “In the absence of a motion under paragraph (1) respecting the special master’s decision ... the clerk of the United States Court of Federal Claims shall immediately enter judgment in accordance with the special master’s decision.” Respondent argues that by mandating an immediate entry of judgment upon expiration of the 30-day deadline, Congress demonstrated its intent to set the period for filing a motion for review of a special master’s decision at 30 days and no more.

But, as this court explained in Raspberry, Congress’ inclusion of provisions in the Vaccine Act that encourage expedited resolution of Vaccine Act petitions demonstrates an intent to promote petitioners’ interests rather than to limit petitioners’ ability to secure compensation for vaccine-related injuries. This court explained, as follows:

The Vaccine Act restricts petitioners in certain circumstances from instituting private suits against vaccine manufacturers or administrators unless the petitioners first file a petition under the Vaccine Act and secure a judgment on that petition from this court. Congress’ focus on expedited resolution of Vaccine Act petitions therefore benefits petitioners because the quicker their petitions are resolved, the quicker the petitioners can proceed with any still-viable, third-party actions. 42 U.S.C. § 300aa-21(a) and (c). Congress’ intent to so benefit petitioners by providing for expedited proceedings is apparent from the following statement in the pertinent House Report: “[M]uch of the equity in limiting compensation and limiting other remedies arises from the speed and reliability with which the petitioner can expect judgment; without such quick and certain conclusion of proceedings, the compensation system would work an injustice upon the petitioner.” H.R.Rep. No. 908, 99th Cong., 2d Sess., pt. 1 at 17 (1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6358.

32 Fed.Cl. at 780-81 (footnote omitted). In this setting, it is apparent that Congress’ mandate that the clerk of this court “immediately enter judgment” if a petitioner does not file a motion for review within 30 days of the special master’s decision is not intended to limit a petitioner’s options by precluding resort to equitable tolling. Rather, Congress sought instead to foster petitioners’ ability to secure compensation for vaccine-related injuries by “immediately” removing a statutory bar that otherwise could prevent a petitioner, who has determined not to seek review of an adverse special master decision, from instituting damage actions against the vaccine manufacturer or administrator.

III.

As an alternative to its statutory construction argument, respondent contends that Widdoss v. Secretary, HHS, 989 F.2d 1170 (Fed.Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 381, 126 L.Ed.2d 331 (1993), which is controlling precedent, precludes equitable tolling of the 30-day time period in Section 12(e)(1). In Raspberry, this court distinguished Widdoss as follows:

Like the instant case, Widdoss involved a motion for review delivered to the clerk of this court one day beyond the 30-day statutory time period. But because the majority opinion neither raised nor addressed equitable tolling or the Supreme Court’s holding in Irwin, it appears that the petitioner in Widdoss did not contend that the facts leading to the untimely filing consti[544]*544tuted grounds for equitable tolling. Indeed, the majority opinion viewed the issue before it as whether the court had the authority to waive rather than toll the 30-day period in Section 12(e)(1). Widdoss, 989 F.2d at 1172 (defining the issue before it as “whether the 30-day period ... is jurisdictional; and ... whether the [Court of Federal Claims] has the authority to waive compliance with the 30-day period through use of its rules of procedure”). The Federal Circuit concluded that the 30-day period is jurisdictional and, thus, that this court lacks the authority to waive a jurisdictional prerequisite.
There is a crucial distinction between a court waiving a jurisdictional time limitation, an act Widdoss explains Congress forbids, and a court applying the doctrine of equitable tolling, an act Irwin explains Congress presumptively allows. The Court of Appeals for the Federal Circuit explained this crucial distinction in its post-Widdoss decision in Bath Iron Works Corp. v. United States, 20 F.3d 1567, 1572 n. 2 (Fed.Cir.1994), as follows:
The language in Irwin that the time limit may be tollable can be reconciled with the ... holding[ ] that these stafrutes of limitations are jurisdictional. Tolling is not the same as waiving. Presumably, therefore,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Baker v. Secretary of Health & Human Services
61 Fed. Cl. 669 (Federal Claims, 2004)
Drew v. Department of Corrections
297 F.3d 1278 (Eleventh Circuit, 2002)
Leonard v. West
12 Vet. App. 554 (Veterans Claims, 1999)
Taylor v. Secretary of Health & Human Services
34 Fed. Cl. 137 (Federal Claims, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
33 Fed. Cl. 542, 1995 U.S. Claims LEXIS 133, 1995 WL 406536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/her-v-secretary-of-the-department-of-health-human-services-uscfc-1995.