Jones v. HHS - diphtheria-tetanus booster, swelling of his mouth, tongue, and sinuses making it hard eat, drink, or breathe (2007)

The petitioner, identified in case documents as Jones, filed a pro se petition on May 21, 2007, alleging that a diphtheria-tetanus (DT) booster vaccine received on June 2, 2003 had caused swelling of the mouth, tongue, and sinuses, along with difficulty eating, drinking, and breathing and other allergic symptoms. The symptoms were alleged to have appeared within hours of the vaccination.

Under 42 U.S.C. § 300aa-16(a)(2), a Vaccine Act petition must be filed within thirty-six months of the first manifestation of the alleged injury. The first symptoms appeared in June 2003, making the filing deadline June 2006.

Ms. Jones filed her petition on May 21, 2007 — approximately eleven months after the deadline.

The respondent moved to dismiss the petition as time-barred. Special Master dismissed the petition on May 23, 2007, relying on Brice v.

Secretary of HHS, 240 F.3d 1367 (Fed. Cir. 2001), which held that equitable tolling is not available under the Vaccine Act.

Judge Hewitt, writing for the Court of Federal Claims on August 29, 2007, affirmed the dismissal. The thirty-six-month limitations period under § 300aa-16(a)(2) is jurisdictional: the special master had no authority to waive or extend it, and the court likewise lacked subject matter jurisdiction over the late-filed petition.

Petitioner argued that the severity of her injury and her ongoing legal proceedings justified tolling the statute of limitations. The court rejected both arguments: the severity of an injury is not a basis for equitable tolling under the Vaccine Act, and any separate legal proceedings she may have pursued do not extend the time to file a vaccine petition.

Equitable tolling is simply unavailable under the Act, as established by Brice and confirmed by Markovich v. Secretary of HHS, 477 F.3d 1353 (Fed.

Cir. 2007). The petition was dismissed for lack of subject matter jurisdiction.