Simmons v. Hhs

Opinion

Case: 24-1688 Document: 11 Page: 1 Filed: 06/25/2024

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit

______________________

DEBRA SIMMONS, Petitioner-Appellant

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent-Appellee

______________________

2024-1688

______________________

Appeal from the United States Court of Federal Claims in No. 1:23-vv-00121-UNJ.

______________________

Before STOLL, CUNNINGHAM, and STARK, Circuit Judges. PER CURIAM.

ORDER

In response to this court’s April 25, 2024 show cause order, the Secretary of Health and Human Services urges dismissal while Debra Simmons argues, in part, difficulties in prosecuting her case due to her alleged disability.

The special master dismissed Ms. Simmons’s petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Act”). Having received no motion for review, the United States Court of Federal

Case: 24-1688 Document: 11 Page: 2 Filed: 06/25/2024

2 SIMMONS v. HHS

Claims entered judgment. See 42 U.S.C. § 300aa-12(e)(3). Ms. Simmons then filed a notice of appeal to this court.

The statutory scheme governing Vaccine Act cases generally “makes appeal to the Court of Federal Claims a prerequisite for appeal to this court.” Grimes v. Sec’y of Dep’t of Health & Hum. Servs., 988 F.2d 1196, 1198 (Fed. Cir. 1993); see 42 U.S.C. § 300aa-12(e), (f); Mahaffey v. Sec’y of Dep’t of Health & Hum. Servs., 368 F.3d 1378, 1382–83 (Fed. Cir. 2004). Ms. Simmons did not seek review at the Court of Federal Claims before filing this appeal, and she provides no basis for allowing this appeal to proceed under such circumstances. Although the government urges the court to dismiss without taking further action, we deem it more appropriate to transmit her filings to the Court of Federal Claims for that court to consider whether Ms. Simmons ’s filings can be construed as a motion for review under 42 U.S.C. § 300aa-12(e)(1) and to decide in the first instance whether such a motion would be time-barred, or whether her filings can otherwise be construed as seeking relief from judgment. See Ling v. Sec’y of Health & Hum. Servs., No. 2023-1072, 2023 WL 8447276, at *2 n.2 (Fed. Cir. Dec. 6, 2023) (“We have not resolved whether or not [the Supreme Court’s] recent guidance affects our holding in Widdoss[ v. Sec’y of Dep’t of Health & Hum. Servs., 989 F.2d 1170 (Fed. Cir. 1993)].”); Greenberg v. Sec’y of Health & Hum. Servs., 646 F. App’x 985, 888 (Fed. Cir. 2016) (noting the Court of Federal Claims’s review of special master’s decision under similar circumstances).

Accordingly, IT IS ORDERED THAT: (1) The appeal is dismissed. (2) The Clerk of Court is directed to transmit a copy of this order and ECF Nos. 1-2, 5, and 6 to the Court of Federal Claims for further proceedings consistent with this order .

Case: 24-1688 Document: 11 Page: 3 Filed: 06/25/2024

SIMMONS v. HHS 3

(3) Each side shall bear its own costs.

FOR THE COURT

June 25, 2024 Date