Tsekouras v. Secretary of Department of Health & Human Services

26 Cl. Ct. 439, 1992 U.S. Claims LEXIS 339, 1992 WL 175591
CourtUnited States Court of Claims
DecidedJuly 10, 1992
DocketNo. 90-2761V
StatusPublished
Cited by190 cases

This text of 26 Cl. Ct. 439 (Tsekouras v. Secretary of Department of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of 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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Tsekouras v. Secretary of Department of Health & Human Services, 26 Cl. Ct. 439, 1992 U.S. Claims LEXIS 339, 1992 WL 175591 (cc 1992).

Opinion

ORDER

NETTESHEIM, Judge.

This matter is before the court on petitioner’s motion for review of an order entered by Chief Special Master Gary J. Golkiewicz on April 30, 1992, ordering entry of judgment pursuant to an earlier award of dismissal issued on June 19, 1991. Argument is deemed unnecessary. The salient background facts are few:

1. On December 14, 1990, the chief special master entered an order requiring petitioner to file within 60 days certain documents called for by section 300aa-ll(c) of 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.1991) (the “Act”) {see also Vaccine Rule 2(e)). The Act makes the filing of these documents with the petition a jurisdictional requisite. The order further advised: “Failure to comply with this Order will result in a dismissal of this case with prejudice.”

2. On April 19, 1991, the chief special master issued an order requiring submission of the documents called for by the December 14, 1990 order. Noting the failure to comply with the earlier order, the chief special master allowed petitioner an additional 30 days. The order further provided: “While this failure provides sufficient basis for the court to dismiss this action, due to the severity of such action, petitioner will be given one last opportunity to comply with the court’s Order.” (Emphasis in original.)

3. On June 19, 1991, the chief special master entered an order reciting the failure to comply with either the December 14, 1990 or April 19, 1991' orders. This order concluded: “Given the Act’s ‘front-end loaded’ jurisdictional requirements and petitioner’s failure not only to meet those requirements but also to respond to the court’s Orders, the court has no option but to dismiss this petition with prejudice pursuant to Vaccine Rule 21(c).” However, the order allowed:

Due to the extreme nature of dismissal, the court will entertain a motion to grant relief from this dismissal for the limited reasons of mistake, inadvertence, surprise or excusable neglect. See Vaccine Rule 1. Such motion must be filed within fourteen (14) days after the filing of this Order. No extensions will be granted.

Judgment was not entered on this order.

4. On August 2, 1991, petitioner filed a Motion for Extension of Time, requesting a 90-day period within which to submit additional documentation. The motion recited that petitioner was “under the mistaken belief that ... [she] had filed all of the required medical records, affidavits, and other documents, and ... [was] surprised by the Court’s Order of June 19, 1991.” Accompanying this motion was the affida[441]*441vit of Saul Doner, counsel for petitioner, averring to the mistake and surprise.

5. On April 30, 1992, the chief special master issued an order denying the motion. This order referred to material that is not included in the record, with specific reference to Mr. Doner’s medical problems and surgery resulting from an illness that did not manifest itself until July 9, 1991, after the case had been dismissed. This hiatus is explained in respondent’s reply to petitioner’s motion for review. Respondent states that after the June 19, 1991 order dismissing the case with prejudice, petitioner filed on or about July 8, 1991, a “ ‘Motion for Extension of Time To Submit Additional Records.’ ” Respondent says that this document was not accepted for filing due to the previous dismissal. Apparently, the chief special master mentioned its contents nonetheless. The court will consider the factual information to have been submitted to the chief special master on reconsideration.

After reciting the procedural history of the case, the April 30,1992 order evaluated the motion under the standards for relief applicable to RUSCC 60(b). The chief special master concluded that petitioner failed to make a showing of exceptional circumstances warranting relief under Rule 60(b). The chief special master mentioned several factors that supported the sanction of dismissal, including prejudice to respondent. The failure to comply with court orders over a 6-month period was deemed a “straightforward case of nonfeasance or a failure to prosecute.” Petitioner’s motion for relief was denied.

DISCUSSION

1. Standard of review

On review of a decision by a special master, the Claims Court is authorized to “set aside any findings of fact or conclusion^] of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law.” 42 U.S.C.A. § 300aa-12(e)(2)(B). The issue of whether the evidence of record warrants a conclusion that a vaccine caused an injury calls for review under the arbitrary and capricious standard. Hines v. Secretary of DHHS, 940 F.2d 1518, 1527 (Fed.Cir.1991). According to the Federal Circuit, “ ‘arbitrary and capricious’ is a highly deferential standard of review____” Id. at 1528.

The Supreme Court, in the context of reviewing a federal agency’s decision under the Administrative Procedure Act, 5 U.S.C. § 706 (1988), explained that under the arbitrary and capricious standard a reviewing court must consider “whether the [federal agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971) (citing cases) (quoted in Hines, 940 F.2d at 1527). “Although ... [the] inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one____” Citizens To Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. at 824; see also Hyundai Elecs. Indus. Co. v. ITC, 899 F.2d 1204, 1209 (Fed.Cir.1990) (the “touchstone” of arbitrary, capricious, and abuse of discretion standard of review is rationality—consideration of all relevant factors absent a clear error of judgment). In Hines the Federal Circuit charted the course for a special master’s decision under the arbitrary and capricious standard: It must 1) consider the relevant evidence in the record as a whole; 2) draw plausible inferences from the evidence; and 3) articulate a basis for the decision that is rational. Hines, 940 F.2d at 1528.

Petitioner’s central complaint is that the dismissal in the circumstances was an abuse of discretion. Respondent correctly rejoins that the dismissal must be judged on the basis of the facts then known to petitioner that were brought to the chief special master’s attention before he entered his order of April 30, 1992. Petitioner’s motion for review sets forth additional facts that petitioner admits were not part of the record before entry of judgment. For purposes of determining whether the chief special master abused his discretion, [442]*442the court must disregard this additional information.

The court has reviewed the record carefully.

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26 Cl. Ct. 439, 1992 U.S. Claims LEXIS 339, 1992 WL 175591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tsekouras-v-secretary-of-department-of-health-human-services-cc-1992.