Thornton v. Secretary of the Dept. of Health & Human Services

34 Fed. Cl. 72, 1995 U.S. Claims LEXIS 166, 1995 WL 502138
CourtUnited States Court of Federal Claims
DecidedAugust 21, 1995
DocketNo. 90-2971 V
StatusPublished
Cited by1 cases

This text of 34 Fed. Cl. 72 (Thornton v. Secretary of the Dept. 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
Thornton v. Secretary of the Dept. of Health & Human Services, 34 Fed. Cl. 72, 1995 U.S. Claims LEXIS 166, 1995 WL 502138 (uscfc 1995).

Opinion

ORDER

HORN, Judge.

This case comes before the United States Court of Federal Claims on petitioner’s motion for an extension of time to file a motion for review of the special master’s decision. Petitioner, Edith Thornton, filed her petition for compensation under the Vaccine Program, 42 U.S.C. §§ 300aa-l, et seq. (Supp. 1995), on October 1, 1990. Petitioner’s claim was dismissed by order dated June 5, 1995. Petitioner claims that she had sustained serious injury as a result of the administration of a polio vaccine, Monovalent Sabin # 1, on May 19, 1963, and that the vaccine caused complete paralysis, followed by crippling and debilitating pain, which has adversely affected her health and employability.

On March 28,1995, following submission of documents and briefs, an evidentiary hearing was held in the case in Atlanta, Georgia, before Chief Special Master Gary J. Golkiew-icz. At the hearing, petitioner appeared, along with her attorney of record at the time, A. Leroy Toliver of Atlanta, Georgia. On June 2, 1995, the special master issued an unpublished decision, holding that “[pjetitioner has not demonstrated by a preponderance of the evidence that the polio vaccination she had was either the presumptive cause or factual cause of her medical problems.” Consequently, the special master determined that petitioner was not entitled to compensation under the Vaccine Compensation Program, 42 U.S.C. §§ 300aa-l, et seq.

With the exception of approximately thirteen months sometime prior to the hearing in her case, during which petitioner appears to have acted pro se, Ms. Thornton has been represented by counsel. At the time of the issuance of the special master’s final decision, as well as at the hearing, petitioner was represented by Mr. Toliver.

In accordance with the rules of this court, beginning June 2, 1995, when the special master’s report was issued, petitioner had thirty (30) days to file a motion with this court to review the decision of the special master. See 42 U.S.C. § 300aa-12(e)(l) (Sup.1994); Rules of the United States Court of Federal Claims (RCFC), Appendix J (The [73]*73Vaccine Rules), Rule 23. Following issuance of the special master’s opinion, the next filing received from petitioner Thornton, now acting pro se, was a letter, dated July 1, 1995, for an extension of time to file an appeal with this court. The letter was dated July 1, 1995. Petitioner’s request was stamped received by the clerk’s office on July 5, 1995. Upon receipt of Ms. Thornton’s request at the court, also on July 5, 1995, the clerk’s office sent the petitioner’s request to this judge for action, noting several defects in the filing. Nonetheless, despite assignment to this judge for consideration of Ms. Thornton’s request for an extension of time, the clerk’s office entered judgment in the case pursuant to Vaccine Rule 11(a), and sent copies of the judgment to both parties.

In her request for an extension of time to seek review, petitioner states that she was under the false impression that former counsel had filed an appeal. Upon learning in a letter she received on June 30,1995 from her counsel that no motion for review had been filed, and that none would be filed, petitioner submitted a hand-written request to the court seeking a thirty (30) day extension to find new counsel and to file an appeal. Attorney Toliver still appears on the court records as attorney of record. No motion to relieve him as counsel has been received by the court. According to petitioner’s request:

The reason for the request is that I was under the impression that my attorney had already filed the appeal. Today, June 30, 1995, upon receipt of a letter from my former attorney, Mr. Tolliver, I was informed that nothing had been done to date and that he had no intention of doing anything further in this matter.

The only issue currently before this court is whether petitioner’s motion to seek review of the special master’s decision may be granted. The merits of the decision issued by the special master are not reviewed by the court at this time.1

Vaccine Rule 23, Motion for Review and Objections, states:

To obtain review of a special master’s decision, within 30 days after the date on which the decision is filed, a party must file with the clerk a motion for review of the decision. No extensions of time under this rule will be permitted, and failure of a party to timely file such a motion shall constitute a waiver of the right to obtain review.

RCFC, Appendix J, Rule 23.

While this court clearly limits this order to the facts of the specific case currently before it, the court is aware of the extreme inflexibility of 42 U.S.C. § 300aa-12(e)(l) and Vaccine Rule 23 as previously interpreted. Vaccine Rule 23 was designed to implement 42 U.S.C. § 300aa-12(e)(l), which provides:

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. If such a motion is filed, the other party shall file a response with the clerk of the United States Court of Federal Claims no later that 30 days after the filing of such motion.

42 U.S.C. § 300aa-12(e)(l). The court notes, however, that the phrase “no extensions of time under this rule will be permitted” included in RCFC Appendix J, Rule 23, does not appear in statutory section 42 U.S.C. § 300aa-12(e)(l), and apparently was added in vaccine rule 23 by the drafters of that rule.

The United States Court of Appeals for the Federal Circuit has held that “the 30-day time period in which to file a motion for review under section 300aa-12(e)(l) is jurisdictional.” Widdoss v. Secretary of Dep’t of Health and Human Services, 989 F.2d 1170, 1177-78 (Fed.Cir.1993). In Widdoss, the court noted that RCFC 60(b) may not be used to alter jurisdiction, such as “to toll, extend, or waive the time period in which to appeal.” In Widdoss, the Federal Circuit [74]*74found that this court did not have jurisdiction to hear petitioner’s motion to review because the filing of the motion to review the special master’s decision was untimely. Widdoss, 989 F.2d at 1172. As a result, the Claims Court decision in Widdoss was vacated and the case was remanded to enter judgment in accordance with the special master’s decision. Id. Likewise, in Patton v. Secretary of Dep’t of Health and Human Services, 25 F.3d 1021, 1027-1028 (Fed.Cir.1994), which follows Widdoss,

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Bluebook (online)
34 Fed. Cl. 72, 1995 U.S. Claims LEXIS 166, 1995 WL 502138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thornton-v-secretary-of-the-dept-of-health-human-services-uscfc-1995.