VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-01790
Package ID: USCOURTS-cofc-1_22-vv-01790
Petitioner: Laurence Chitlik
Filed: 2022-12-07
Decided: 2025-03-27
Vaccine: influenza
Vaccination date: 2019-12-06
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On December 7, 2022, Laurence Chitlik, a 71-year-old man, filed a pro se petition for compensation under the National Vaccine Injury Compensation Program, alleging that an influenza vaccine he received on December 5 or 6, 2019, caused him to suffer a shoulder injury related to vaccine administration (SIRVA). He alleged that the pain began immediately after vaccination, with severely limited range of motion within 48 hours, and he began physical therapy in January 2020. The respondent is the Secretary of Health and Human Services. The petitioner later obtained counsel, who filed an amended petition on September 4, 2024, alleging alternatively a Table SIRVA claim, a causation-in-fact SIRVA claim, and a significant aggravation claim. On the same day, the petitioner's counsel filed a motion for equitable tolling of the statute of limitations. The petitioner argued that his petition was filed one day late, on December 7, 2022, as the 36-month statute of limitations expired on December 6, 2022. He asserted that he mailed his petition via certified First-Class USPS mail on November 26, 2022, eight days before the deadline, and that the delay was caused by extraordinary circumstances, including the COVID-19 pandemic and USPS operational issues. The respondent opposed the motion, arguing that the petitioner did not exercise reasonable diligence by choosing First-Class mail over a guaranteed delivery service and that USPS delays are not extraordinary circumstances. Special Master Herbrina D.S. Young denied the motion for equitable tolling on December 19, 2024, finding that the petitioner had not demonstrated reasonable diligence in filing his petition. The Special Master noted that the petitioner could have used overnight delivery or Priority Mail Express for a guaranteed delivery. She also found that delays in regular mail are not extraordinary circumstances and that the petitioner had not provided sufficient evidence that the COVID-19 pandemic caused an extraordinary circumstance. Consequently, the Special Master dismissed the petition as untimely. The petitioner sought review of this decision. On March 27, 2025, Judge Richard A. Hertling of the U.S. Court of Federal Claims issued a memorandum opinion and order affirming the Special Master's decision. Judge Hertling reviewed the case de novo and agreed that the petitioner failed to demonstrate reasonable diligence. He found that the petitioner's choice of First-Class mail, especially during the busy holiday season, and his failure to monitor tracking information and respond to apparent delays, demonstrated a lack of reasonable diligence. Because the petitioner failed to meet the diligence prong, the court did not need to address the extraordinary circumstances prong. The motion for review was denied, and the petition was dismissed. The public decision does not describe the specific mechanism of the alleged injury or name any medical experts.

Theory of causation field:
Petitioner Laurence Chitlik, age 71, received an influenza vaccine on December 6, 2019, and alleged immediate onset of shoulder pain and severely limited range of motion within 48 hours, consistent with a Shoulder Injury Related to Vaccine Administration (SIRVA). The petition was filed on December 7, 2022, one day after the 36-month statute of limitations expired, calculated from the alleged immediate onset of symptoms. Petitioner sought equitable tolling, arguing he mailed the petition via certified First-Class mail on November 26, 2022, eight days before the deadline, and that USPS delays, exacerbated by the COVID-19 pandemic, constituted extraordinary circumstances. Respondent opposed, arguing Petitioner failed to exercise reasonable diligence by not using a guaranteed delivery service and that USPS delays are not extraordinary. Special Master Herbrina D.S. Young denied equitable tolling, finding Petitioner lacked reasonable diligence in choosing First-Class mail and failing to monitor tracking, and that USPS delays were not extraordinary circumstances. Judge Richard A. Hertling affirmed, reviewing de novo and agreeing that Petitioner's failure to monitor tracking and respond to delays during the peak holiday mailing season demonstrated a lack of reasonable diligence, thus precluding equitable tolling. The petition was dismissed as untimely. No specific medical experts or causation mechanisms were detailed in the public decisions.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_22-vv-01790-0
Date issued/filed: 2025-01-21
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 12/19/2024) regarding 42 DECISION of Special Master. Signed by Special Master Herbrina D S Young. (kis) Service on parties made.
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Case 1:22-vv-01790-RAH Document 43 Filed 01/21/25 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 19, 2024
* * * * * * * * * * * * * * *
LAURENCE CHITLIK, *
*
Petitioner, * No. 22-1790v
*
v. * Special Master Young
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Greg Tinch, Tinch Law Firm, College Park, MD, for Petitioner.
Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On December 7, 2022, Laurence Chitlik (“Petitioner”), acting pro se, filed a petition for
compensation in the National Vaccine Injury Compensation Program (“the Program”).2 Pet.,
ECF No. 1. Petitioner alleged that the influenza (“flu”) vaccine he received on December 5,
2019, caused him to suffer a shoulder injury related to vaccine administration (“SIRVA”). Id. at
1. On September 4, 2024, Petitioner, through counsel, filed an amended petition alleging
alternatively a Table SIRVA claim, a causation-in-fact SIRVA claim, and a significant
aggravation claim as a result of the flu vaccine. Am. Pet., ECF. No. 37.
On September 4, 2024, Petitioner filed a motion for equitable tolling of the statute of
limitations. Pet’r’s Mot., ECF No. 38. After careful consideration, the undersigned DENIES
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must
be made publicly accessible and will be posted on the United States Court of Federal Claims’
website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and
Promotion of Electronic Government Services). This means the Decision will be available to
anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14
days to identify and move to redact medical or other information, the disclosure of which would
constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified
material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755 (“the
Vaccine Act” or “Act”). Hereinafter, for ease of citation, all “§” references to the Vaccine Act
will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018).

Case 1:22-vv-01790-RAH Document 43 Filed 01/21/25 Page 2 of 6
Petitioner’s motion. Accordingly, the petition must be dismissed for failure to file a timely action
pursuant to §16(a)(2) of the Vaccine Act.
I. Procedural History
Petitioner filed his petition, pro se, on December 7, 2022. Pet. Petitioner filed medical
records on February 27, 2023. Pet’r’s Exs. 1–13. I held a status conference on September 12,
2023. Min. Entry, docketed Sept. 12, 2023. Petitioner filed additional medical records and a
statement of completion on November 3, 2023. ECF Nos. 17–18. On March 5, 2024, Petitioner’s
counsel filed a consented motion to substitute as attorney in place of Petitioner himself. ECF No.
20.
Respondent filed his Rule 4(c) report, opposing compensation, on May 20, 2024. Resp’t’s
Rept., ECF No. 26. Among other issues, Respondent noted that Petitioner’s case presented a
potential statute of limitations issue, in that if the Court finds that Petitioner’s shoulder pain
began “immediately,” as Petitioner alleged, the petition would be time-barred, because the
December 7, 2022 petition filing date is more than 36 months after onset. Id. at 12 n.7. Petitioner
filed additional medical records in May and June of 2024. Pet’r’s Exs. 18–20.
I held a status conference on August 2, 2024. Min. Entry, docketed Aug. 2, 2024. I
discussed the statute of limitations issue raised in Respondent’s Rule 4(c) report and discussed
how Petitioner could proceed. ECF No. 34. On September 4, 2024, Petitioner filed an amended
petition and his motion for equitable tolling of the statute of limitations. Am. Pet.; Pet’r’s Mot.
Respondent filed a response on October 9, 2024, and Petitioner filed a reply on October 16,
2024. Resp’t’s Response, ECF No. 40; Pet’r’s Reply, ECF No. 41.
II. Parties’ Contentions
a. Petitioner
While Petitioner admits his petition was untimely filed, he asserts that he meets the
standards for equitable tolling. Petitioner alleges his SIRVA began immediately after vaccination
and therefore the statute of limitations expired on December 6, 2022. Pet’r’s Mot. at 5–6. The
petition was filed on December 7, 2022. Id. at 6.
Petitioner mailed his petition via certified First-Class USPS mail on November 26, 2022.
Id. at 3. This was eight days prior to the statute of limitations. Id. at 6. Tracking information
showed it left the post office that same day. Id. at 3. The petition was delivered to the Clerk’s
Office on December 7, 2022, and was filed the same day. Id. at 4. This was 11 calendar days
(nine business days) from the date of mailing. Id.
Petitioner believes he meets the diligence standard for equitable tolling because he mailed
his petition via certified First-Class mail eight business days prior to the statute of limitations
using a mail service with a standard delivery time of one to five business days. Id. at 6; Pet’r’s
Ex. 28 at 6. He opines this supports a finding that Petitioner made a diligent effort to timely file
his petition because diligence was found in other cases where petitioners mailed their petitions
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Case 1:22-vv-01790-RAH Document 43 Filed 01/21/25 Page 3 of 6
only one to three days prior to the deadline. See, e.g., Raspberry v. Sec’y of Health & Hum.
Servs., 32 Fed. Cl. 777, aff’d, 33 Fed. Cl. 420 (1995) (finding petitioner was diligent in sending
her motion for review via overnight delivery two calendar days (one business day) before the 30-
day statutory reply period closed); Mojica v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 96
(2011) (finding petitioners who tendered their petition via overnight delivery three days before
the statute of limitations lapsed had exercised diligence in preserving their rights). Although
Petitioner did not send his petition by overnight mail as did the petitioners in Raspberry and
Mojica, he argues he “did not need a one business day delivery commitment because he tendered
his petition to the courier ten (10) calendar days (eight (8) business days) before the statute of
limitations lapsed.” Pet’r’s Mot. at 10. In light of the one- to five-business day standard set by
USPS, Petitioner argues the Court should find he was diligent in ensuring a timely delivery of his
petition. Id.
Petitioner also believes there were two extraordinary circumstances beyond his control
that caused his petition’s untimely arrival. First, he argues USPS took nine business days to mail
the petition from Cambridge, Maryland to Washington, D.C. Id. at 6. He argues this is an
extraordinary circumstance because USPS failed to meet its “delivery commitment” of one to
five business days and resulted in a four-business day delay. Id. at 6, 9–10. If it followed the
First-Class mail standard, the petition should have arrived by December 2, 2022. Id. at 10.
The second extraordinary circumstance Petitioner argues he faced was the global
COVID-19 pandemic that exacerbated the USPS’s failure to meet its one- to five-business day
delivery commitment because this “once in a generation health crisis” impacted USPS
operations. Id. at 6, 10. Petitioner cites Mojica for support which initially found the petition was
late “because of shipping errors” by a “well-established and well-known” courier with a strong
record of guaranteed on-time delivery. 102 Fed. Cl. at 98 (citing Mojica v. Sec’y of Health &
Hum. Servs., 79 Fed. Cl. 633, 634 (2007)). Petitioner opines the findings in Mojica stand for “the
proposition that if a petitioner hires a courier to carry their filing to the Court, and the filing is
delayed due to an identifiable operations problem acknowledged by the carrier, the Court should
be inclined to find that identifiable operations problem an extraordinary circumstance.” Pet’r’s
Mot. at 10–11. Here, Petitioner argues the COVID-19 pandemic “caused the courier to
experience identifiable operations problems that caused delivery of the petition to be delayed.”
Id. at 11 (citing Pet’r’s Ex. 28 at 20). He states that although the petition was tendered to USPS
on Saturday, November 26, 2022, according to the tracking record, it was not “in transit” until
Wednesday, November 30, 2024. Id. It was subsequently delivered six business days thereafter
(a total of nine business days from drop-off). Id. Petitioner suggests the petition’s delivery was
delayed due to the COVID-19 pandemic’s impacts on USPS operations, which were out of
Petitioner’s control. Id.
b. Respondent
Respondent opposes Petitioner’s request for equitable tolling. As to the diligence prong,
Respondent first states that although Petitioner admitted his pain began “immediately” after his
December 5, 2019 vaccine, he waited until November 26, 2022 to mail his petition. Resp’t’s
Response at 3–4. Second, he argues Petitioner failed to exercise diligence when he chose to use
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Case 1:22-vv-01790-RAH Document 43 Filed 01/21/25 Page 4 of 6
USPS First-Class mail rather than another USPS delivery that would guarantee the petition’s
timely arrival, such as overnight delivery. Id. at 4.
While Petitioner discussed delivery “commitment” in his argument, Respondent contends
that is different than a “guarantee.” Id. Respondent argues Petitioner referenced USPS’s service
goals as the “service standards” and “delivery commitment” of one to five business days for
First-Class mail, but that those are merely standards it aspires to uphold and do not constitute any
contractual agreement. Id. (citing Pet’rs Ex. 28 at 1). Respondent states Petitioner had the option
to choose a guaranteed delivery date and chose not to do so. Id. (citing the USPS website
informing customers of Priority Mail Express with a next-day to two-day delivery guarantee by
6:00 PM).
For this reason, Respondent contends this case is different from Raspberry and Mojica. In
both cases, the petitioners utilized guaranteed overnight delivery services which failed to meet
the delivery guarantees. Id. (citing Raspberry, 32 Fed. Cl. 782–84; Mojica 102 Fed. Cl. at 97,
100). Both Courts noted “that guaranteed overnight delivery by an established carrier is a reliable
method of securing timely delivery and that petitioners’ choice and reliance upon that method
showed diligence.” Id.; see Raspberry, 32 Fed. Cl. 782 (“Additionally, petitioner made a diligent
effort to secure timely delivery of her motion by choosing an established carrier that guaranteed
overnight delivery. Petitioner’s reliance on such a carrier was reasonable because petitioner
could expect that an established carrier would fulfill its delivery guarantees”); Mojica, 102 Fed.
Cl. at 97, 100 (finding diligence where petitioners twice sent their petition by Federal Express’s
guaranteed overnight delivery service).
Here, Respondent contends Petitioner did not choose to mail his petition via overnight
delivery or another guaranteed service. Resp’t’s Response at 5. Instead, he chose First-Class
mail, which unlike Raspberry and Mojica, does not have a strong record of on-time delivery. Id.
“Petitioner’s use of a mailing method with no guaranteed delivery undermines his argument that
he exercised [] diligence.” Id.
Respondent also argues Petitioner failed to satisfy the extraordinary circumstances prong,
stating “there was nothing extraordinary about USPS’s delay.” Id. Respondent cites a document
filed by Petitioner which states that while USPS sets standard delivery windows to inform
customers on how long to expect a particular piece of mail will be delivered, they have “not met
the currents standards for First-Class Mail in eight years, meaning that [they] have not been
providing [their] customers with reliable and predictable delivery. The service [they] have
provided for First-Class Mail with a 3- to 5-day delivery standard has fallen particularly short of
the mark during that period.” Id. (quoting Pet’r’s Ex. 28 at 52). Moreover, Respondent argues the
instant case is incongruous to Mojica and the proposition that the COVID-19 pandemic caused
USPS to experience “identifiable operations problems” resulting in extraordinary circumstances.
Id. at 6. Respondent differentiates the two by noting that in Mojica, “a pandemic had not been
ongoing on for more than two years causing well-known disruptions to mail and delivery
services and operations.” Id. Respondent opines that in Mojica, the Court “relied upon the rarity
of a well-known commercial carrier failing to meet its overnight guarantee – Mojica did not deal
with USPS first-class mail, which . . . has a track record of failing to meet its five-day delivery
goal.” Id. (citing Mojica, 102 Fed. Cl. at 100–01). Mojica also acknowledged that “while delays
4

Case 1:22-vv-01790-RAH Document 43 Filed 01/21/25 Page 5 of 6
in regular mail service are not unusual, delays in commercial overnight delivery would be
extraordinary.” Mojica, 102 Fed. Cl. at 100–01 (citing Anssari-Gharachedaghy v. I.N.S., 246
F.3d 512, 513 (6th Cir. 2000)).
III. Legal Framework
a. Vaccine Act Statute of Limitations
Section 16(a)(2) of the Vaccine Act governs claims resulting from vaccines administered
after October 1, 1988, and reads,
if a vaccine-related injury occurred as a result of the administration of such
vaccine, no petition may be filed for compensation under the Program for such
injury after the expiration of 36 months after the date of the occurrence of the first
symptom or manifestation of onset or of the significant aggravation of such
injury.
§ 16(a)(2). Therefore, claims resulting from vaccines administered after October 1, 1988 must be
filed within 36 months of the first symptom or manifestation of onset of the alleged vaccine-
related injury. The statute of limitations begins to run from the onset of the first objectively
cognizable symptom, whether or not that symptom is sufficient for diagnosis. Carson v. Sec’y of
Health & Hum. Servs., 727 F.3d 1365, 1369 (Fed. Cir. 2013). Special masters have appropriately
dismissed cases that were filed outside the limitations period, even by a single day or two. See,
e.g., Spohn v. Sec’y of Health & Hum. Servs., No. 95-0460V, 1996 WL 532610 (Fed. Cl. Spec.
Mstr. Sept. 5, 1996) (dismissing case filed one day beyond the 36-month limitations period),
aff’d, 132 F.3d 52 (Fed. Cir. 1997); Cakir v. Sec’y of Health & Hum. Servs., No. 15-1474V, 2018
WL 4499835, at *4 (Fed. Cl. Spec. Mstr. July 12, 2018).
b. The Doctrine of Equitable Tolling
The Federal Circuit has held that the doctrine of equitable tolling can apply to Vaccine
Act claims in limited circumstances. See Cloer v. Sec’y of Health & Hum. Servs., 654 F.3d 1322,
1340–41 (Fed. Cir. 2011). The doctrine of equitable tolling is “to be used ‘sparingly’ and only in
‘extraordinary circumstance[s],’ for example, if a petitioner is a victim of fraud or duress, or filed
a procedurally defective claim.” Id. at 1334–35 (Fed. Cir. 2011) (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990); Bailey v.
Glover, 88 U.S. 342, 349–50 (1874)). While prior cases can provide guidance to the factfinder,
whether a particular fact pattern justifies equitable tolling must be determined on a “case-by-case
basis.” Holland v. Florida, 560 U.S. 631, 649–50 (2010).
To establish that equitable tolling of a statute of limitations is appropriate, a claimant
must prove (1) he pursued his rights diligently and (2) an extraordinary circumstance prevented
him from timely filing the claim. K.G. v. Sec’y of Health & Hum. Servs., 951 F.3d 1374, 1379
(Fed. Cir. 2020) (citing Menominee Indian Tribe v. United States, 136 S. Ct. 750, 755 (2016)).
“The two components of this test are ‘distinct elements,’ and the court may deny requests for
equitable tolling ‘where a litigant failed to satisfy one without addressing whether he satisfied the
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Case 1:22-vv-01790-RAH Document 43 Filed 01/21/25 Page 6 of 6
other.’” Crawley v. United States, 157 Fed. Cl. 178, 181 (2021) (quoting Menominee Indian
Tribe, 577 U.S. at 256).
IV. Discussion
The parties do not dispute that the petition was untimely filed. Given that Petitioner’s
SIRVA onset began “immediately” following his December 5, 2019 vaccine, the 36-month
statute of limitations expired on December 6, 2022. Petitioner did not file his petition until
December 7, 2022, one day late. Accordingly, I agree with the parties that the petition was
untimely pursuant to § 16(a)(2).
The parties dispute whether the doctrine of equitable tolling should apply. While
equitable tolling applies to the Vaccine Act, I find Petitioner’s arguments unpersuasive and do
not find a basis in equity for tolling the limitations period in this case.
First, Petitioner could have avoided an untimely delivery of his petition by choosing
overnight delivery or Priority Mail Express with a next-day to two-day delivery guarantee. I find
no significance in the fact that Petitioner’s petition was one day late versus three or four days
late. Choosing a guaranteed delivery service rather than a “commitment” standard a courier
aspires to uphold would have guaranteed a timely delivery. Petitioner did not so choose.
Second, a delay in regular mail is not an extraordinary circumstance, and Petitioner
acknowledged in his filings that regular mail delays are common. See Pet’r’s Ex. 28. This case is
different than Raspberry and Mojica because those petitioners chose overnight delivery (a
reliable method of securing a timely delivery) whereas Petitioner assumed the risk of regular
mail delivery services. See Talamantes-Penalver v. INS, 51 F.3d. 133, 136 (8th Cir. 1995)
(finding the appellant “could have filed her notice of appeal by using the [USPS] Express Mail or
any number of commercial services that guarantee overnight delivery . . . [appellant] assumed
the risk of regular mail delivery; the method by which a notice of appeal is sent is entirely within
the control of the appellant”).3 Further, Petitioner has not provided sufficient evidence that the
COVID-19 pandemic substantially affected the mail to cause an extraordinary circumstance.
V. Conclusion
Taking Petitioner’s pleadings in the light most favorable to him, the undersigned finds
that Petitioner’s vaccine-related claims were untimely filed, and equitable tolling is not
applicable to extend the filing deadline. Therefore, I must DISMISS the petition.
IT IS SO ORDERED.
s/Herbrina Sanders Young
Herbrina Sanders Young
Special Master
3 Talamantes-Penalver involved an appeal of a decision, which was sent by regular mail three days prior
to the filing deadline but was not received until one day after the filing deadline passed. 51 F.3d. 133,
136.
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DOCUMENT 2: USCOURTS-cofc-1_22-vv-01790-1
Date issued/filed: 2025-03-27
Pages: 8
Docket text: UNREPORTED OPINION: Reissued Public Opinion of the 50 Sealed Opinion issued on 03/17/2025 denying petitioner's 44 motion for Review. Signed by Judge Richard A. Hertling. (iab) Service on parties made. Signed by Judge Richard A. Hertling. (iab) Service on parties made.
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Case 1:22-vv-01790-RAH Document 56 Filed 03/27/25 Page 1 of 8
In the United States Court of Federal Claims
No. 22-1790v
Filed: March 27, 2025 *
NOT FOR PUBLICATION
LAURENCE CHITLIK,
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Greg Tinch, Tinch Law Firm, College Park, MD, for the petitioner.
Kimberly Shubert Davey, Torts Branch, Civil Division, U.S. Department of Justice, Washington,
DC, for the respondent.
MEMORANDUM OPINION AND ORDER
HERTLING, Judge
The petitioner, Laurence Chitlik, filed a petition under the National Vaccine Injury
Compensation Program (“Vaccine Program”), 42 U.S.C. § 300aa et seq., alleging that an
influenza (“flu”) vaccine he received on December 5, 2019, caused him to suffer a shoulder
injury related to vaccine administration (“SIRVA”). After the petitioner filed an amended
petition alleging the vaccine had been administered on December 6, 2019, the special master
dismissed the petition because it was filed one day after the expiration of the three-year statute of
limitations established by 42 U.S.C. § 300aa-16. Chitlik v. Sec’y of Health & Hum. Servs., No.
22-1790, 2024 WL 5346731 (Fed. Cl. Spec. Mstr. Dec. 19, 2024) (“Decision”). The petitioner
seeks review of the dismissal and of the special master’s decision denying his motion for
equitable tolling of the statute of limitations.
Neither party disputes that the petition was filed one day late; the only issue is whether
the facts support equitable tolling of the statute of limitations. The special master’s decision not
to apply equitable tolling to the petitioner’s claim was in accordance with applicable law. The
* Pursuant to Vaccine Rule 18(b), this opinion was filed under seal on March 17, 2025, and the
parties were directed to propose redactions of confidential information. The petitioner proposed
two redactions (ECF 54) that are accepted (ECF 55) and denoted by [⁎ ⁎ ⁎].

Case 1:22-vv-01790-RAH Document 56 Filed 03/27/25 Page 2 of 8
petitioner fails to demonstrate that he exercised reasonable diligence in mailing his petition as the
deadline approached. Accordingly, the petitioner’s motion for review is denied.
I. FACTUAL BACKGROUND
The underlying facts are not in dispute. The factual record consists of an affidavit from
the petitioner describing his vaccination, the onset of his symptoms, a list of his medical
providers, and the physical limitations attributed to the SIRVA. (ECF 37-1.) The petitioner also
submitted his medical records (ECF 10), reflected in the Administrative Record (“AR”).2 At this
stage of the proceedings, the petitioner’s allegations are assumed to be true.
A. Vaccination and Onset of Symptoms
On December 6, 2019, the petitioner, then a 71-year-old Maryland resident, received a flu
vaccine in his left shoulder and “immediately” began experiencing pain in that shoulder.3 (ECF
10-1 at 1; ECF 35-2; ECF 37-1 at ¶ 3.) Within 48 hours, the petitioner’s range of motion was
severely limited. (ECF 37-1 at ¶ 4.) Beginning on January 27, 2020, the petitioner started
receiving physical therapy on the affected shoulder. (Id. at ¶ 6.)
A. COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of COVD-19 a
global pandemic. As a result, the Court of Federal Claims restricted public access to the
National Courts Building and the Annex that houses the Office of the Special Master. Order
Restricting Public Access to the Howard T. Markey National Courts Building, (Fed. Cl. Mar. 16,
2020). On March 18, 2020, the Court of Federal Claims suspended paper filing requirements in
pro se cases. General Order Suspending Paper Filing Requirements in Pro Se Cases, (Fed. Cl.
Mar. 18, 2020). The court did not, however, suspend the rule requiring pro se litigants to file
case-initiating documents in paper form. The March 18 Order required pro se litigants to
2 The AR contains the petitioner’s medical records, submitted on a USB drive. The page
numbers of the AR reflect the page numbers of these records on the USB drive.
3 There was some disagreement over whether the vaccine was administered on December 5
or December 6, 2019. The original petition alleged the date as December 5. (ECF 1 at 1.) The
amended petition alleges December 6. (ECF 37 at 2.) The pharmacy record reflects both dates
in different locations. (ECF 10-1 at 1.) The respondent now agrees that the vaccine was
administered on December 6. In his motion for review, the petitioner argues that the special
master’s conclusion that the vaccine was administered on December 5, 2019, is arbitrary and
capricious. As both the petitioner and respondent now agree, the 36-month statute of limitations
expired on December 6, 2022. Because the petitioner acknowledges that the petition was filed
late, any error by the special master regarding the date of vaccine administration and related
issues is harmless.
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Case 1:22-vv-01790-RAH Document 56 Filed 03/27/25 Page 3 of 8
continue to deliver case-initiating documents “either through the U.S. Postal Service [ ] or by
deposit in the court’s night box.” Id.
B. Petitioner’s Other Medical Problems
After the onset of his shoulder injury, the petitioner underwent treatment for several
chronic conditions. (ECF 37-1 at ¶ 7.) Due to the pandemic and the petitioner’s comorbidities,
the treatments the petitioner required were delayed so that he could receive his COVID-19
vaccinations. (AR 1024.) Following the administration of COVID-19 vaccinations, on [⁎ ⁎ ⁎],
the petitioner had lung surgery under general anesthesia. (Id. at 16, 640, 648.) Five months
later, on [⁎ ⁎ ⁎], the petitioner underwent abdominal surgery under general anesthesia. (Id. at 76,
152.)
C. Mailing the petition
On November 26, 2022, the petitioner mailed a pro se petition for compensation under
the Vaccine Program and supporting exhibits to the Clerk of the Court of Federal Claims via
certified first-class mail. (ECF 37-1 at ¶ 10.) He mailed the documents from his local post office
in Cambridge, Maryland. (ECF 38-1 at 2.) Certified first-class mail is tracked, and the tracking
allows the sender to access a website, enter a unique identifier for the envelope, and track its
location. Based on the tracking slip supplied by the petitioner, the Postal Service received the
envelope containing the petition on November 26, 2022, at 10:40 a.m. (Id.) At 11:47 a.m. that
same day, the envelope containing the petition left the post office. (Id.) The next entry on the
Postal Service tracking information reflects that on November 30, 2022, the envelope containing
the petition was in transit. (Id.) Eight business days later, on December 7, 2022, the next status
update in the tracking record shows that at 10:39 a.m., the envelope containing the petition
arrived at a Postal Service facility in Washington, D.C. (Id.) The tracking record is silent as to
the whereabouts of the envelope between November 26 and November 30 and between
November 30 and December 7. At 11:33 a.m. on December 7, 2022, the envelope containing the
petition was delivered to the Clerk’s office. (Id.) The petition arrived 11 calendar days and nine
Postal Service business days after it was mailed. The Clerk filed the petition the same day it was
received. (ECF 1.) The parties do not dispute that the statutory 36-month statute of limitations
had expired on December 6, 2022.
II. PROCEDURAL HISTORY
On December 7, 2022, the petitioner’s pro se petition for compensation in the Vaccine
Program was received and filed by the Clerk’s office. (Id.) The petitioner alleged that on
December 5, 2019, he had received a flu vaccine that caused him a SIRVA. (Id.) There is no
dispute that the petition was filed after the statute of limitations had expired.
The petitioner subsequently retained counsel and filed an amended petition on September
4, 2024. (ECF 37.) The amended petition alleges a Table SIRVA claim, a causation-in-fact
SIRVA claim, and a claim for the significant aggravation of a pre-existing injury, all arising
from a flu vaccine received on December 6, 2019. On the same day he filed the amended
3

Case 1:22-vv-01790-RAH Document 56 Filed 03/27/25 Page 4 of 8
petition, the petitioner filed a motion to toll the statute of limitations. (ECF 38.) The respondent
opposed the motion. (ECF 40.)
III. THE SPECIAL MASTER’S DECISION
On December 19, 2024, the special master denied the motion for equitable tolling and
dismissed the petition as untimely. The special master noted that the statute of limitations for the
Vaccine Act is 36 months after the first symptom or manifestation of onset of the alleged
vaccine-related injury. Decision, at *4. She also noted that under Cloer v. Sec’y of Health &
Hum. Servs., 654 F.3d 1322 (Fed. Cir. 2011) (en banc), equitable tolling can apply to claims in
the Vaccine Program. Id. As here, the parties did not dispute before the special master that the
petition was filed after the expiration of the statute of limitations. Id.
To determine whether the petitioner met the standard for equitable tolling, the special
master applied a two-element test: (1) whether the petitioner had pursued his rights diligently,
and (2) whether extraordinary circumstances had prevented the filing of a timely claim. Id.
(citing K.G. v. Sec’y of Health & Hum. Servs., 951 F.3d 1374, 1379 (Fed. Cir. 2020) (citing
Menominee Indian Tribe of Wisc. v. United States, 577 U.S. 250, 255 (2016)); Crawley v. United
States, 157 Fed. Cl. 178, 181 (2021)).
The special master found that the petitioner had not met either prong of the test. She
found that the petitioner had not diligently pursued his rights, explaining that the petitioner
“could have avoided an untimely delivery of his petition by choosing overnight delivery or
Priority Mail Express with a next-day to two-day delivery guarantee.” Decision, at *5. Instead,
the petitioner had sent his petition by standard, first-class mail. The special master found it
significant that the petitioner had selected a mailing method that had no guaranteed delivery
window. Id. As a result, she concluded the selection of a delivery method without a guaranteed
delivery window failed to demonstrate diligence.
Similarly, the special master concluded that the petitioner had failed to show that
extraordinary circumstances had prevented the filing of a timely claim. Citing to the petitioner’s
own evidentiary submissions, the special master found that delays in standard mail are to be
expected. Id. The special master distinguished the cases on which the petitioner relied to
support equitable tolling by noting that in the cases in which equitable tolling had been applied,
the claimant had relied on delivery services offering guaranteed overnight delivery, which had
been delayed. Id. Moreover, the special master found that the petitioner had not presented
sufficient evidence that the COVID-19 pandemic “substantially affected the mail to cause an
extraordinary circumstance.” Id.
Because the special master determined that the petitioner failed to meet both the diligence
and extraordinary circumstances elements required for the application of equitable tolling to his
late petition, she found that the petitioner’s claims were untimely, and equitable tolling could not
extend the filing deadline. (Id.) She therefore dismissed the petition as untimely. (Id.)
4

Case 1:22-vv-01790-RAH Document 56 Filed 03/27/25 Page 5 of 8
IV. STANDARD OF REVIEW
The Court of Federal Claims has jurisdiction to review the decisions of special masters
under the Vaccine Program. 42 U.S.C. § 300aa-12(e). Pursuant to this jurisdiction, the court
may “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. § 300aa-12(e)(2)(B); see also Rule
27(b), Appendix B to the Rules of the Court of Federal Claims (“RCFC”).
The issue of whether the equitable tolling of a statute of limitations is warranted is a
question of law that the court reviews de novo. See, e.g., Falzon v. Sec’y of Health & Hum.
Servs., No. 21-1082, 2023 WL 395879, at *8 (Fed. Cl. Jan. 25, 2023), aff’d, No. 2023-1659,
2024 WL 3407439 (Fed. Cir. July 15, 2024); Goetz v. Sec’y of Health & Hum. Servs., 45 Fed. Cl.
340, 341 (1999), aff’d, 4 F. App’x 827 (Fed. Cir. 2001). Likewise, the application of a legal
standard to a set of undisputed facts is reviewed de novo. Former Emps. of Sonoco Prods. Co. v.
Chao, 372 F.3d 1291, 1295 (Fed. Cir. 2004) (“cases . . . requiring application of the appropriate
standard to undisputed facts, are properly questions of law reviewed de novo.”).
The respondent does not dispute the facts related to the motion for equitable tolling, so
the highly deferential standard of review of a special master’s factual findings is not implicated
in the petitioner’s motion for review.
V. TOLLING THE VACCINE PROGRAM STATUTE OF LIMITATIONS
The doctrine of equitable tolling can apply to Vaccine Program claims in limited
circumstances. See Cloer, 654 F.3d at 1340-41. To support a claim for equitable tolling, a party
must show the exercise of reasonable diligence and the existence of extraordinary circumstances
that prevented a timely pleading. Equitable tolling is to be used “sparingly” and its application
has been limited to cases involving deception or the timely filing of a procedurally defective
pleading. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). Circumstances that
“threaten[ ] to deprive a [petitioner] of [his] claim” are not extraordinary and are thus insufficient
to support the application of equitable tolling. Cloer, 654 F.3d at 1344-45; see also Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005) (for equitable tolling to apply, a litigant must have
diligently pursued his rights but “some extraordinary circumstance stood in his way”).
A party seeking to invoke equitable tolling has the burden to prove both that (1) he
diligently pursued his rights and (2) some extraordinary circumstance beyond his control
prevented him from filing a timely petition to demonstrate an entitlement to equitable tolling.
Menominee Indian Tribe, 577 U.S. at 255; see also Pace, 544 U.S. at 418 (“Generally, a litigant
seeking equitable tolling bears the burden of establishing two elements”).
The failure by the party seeking to invoke the doctrine to demonstrate either element of
the test precludes application of equitable tolling. Menominee Indian Tribe, 577 U.S. at 256
(“we have treated the two requirements as distinct elements in practice, too, rejecting requests for
equitable tolling where a litigant failed to satisfy one without addressing whether he satisfied the
other”).
5

Case 1:22-vv-01790-RAH Document 56 Filed 03/27/25 Page 6 of 8
VI. DISCUSSION
The petitioner’s motion before the special master and the motion for review fails to show
that the petitioner exercised reasonable diligence. Reviewed de novo, the special master’s
conclusion that the petitioner failed to demonstrate reasonable diligence is correct and supported
by the record. Because the petitioner failed to pursue his claim diligently, the issue of whether
extraordinary circumstances prevented the filing of a timely petition need not be addressed.
The diligence required for equitable tolling is “‘reasonable diligence,’ not ‘maximum
feasible diligence.’” Checo v. Shinseki, 748 F.3d 1373, 1380 (Fed. Cir. 2014) (quoting Holland
v. Florida, 560 U.S. 631, 653 (2010)). Moreover, “the reasonable diligence inquiry must also be
based on a consideration of all relevant facts and circumstances.” K.G., 951 F.3d at 1382.
In his motion for review, the petitioner argues that the special master improperly relied
on an overly narrow and mechanistic application of the relevant facts. (ECF 44-1 at 17.)
Specifically, he argues that the special master’s determination of the petitioner’s diligence was
based solely on the class of mail service the petitioner opted to use. The petitioner claims that
the special master’s failure to consider “all relevant facts and circumstances” is contrary to case
law. (Id.)
Moreover, the petitioner argues that whether a party has exercised the required level of
diligence is a fact-specific inquiry dependent on the individual’s circumstances. (Id. at 16.) He
argues that he is elderly and a lay person; in the wake of the COVID-19 pandemic, he underwent
two serious surgeries, then had to research the Vaccine Program’s requirements, gather the
necessary medical evidence, prepare his own petition, and arrange for the delivery of the
petition. Given all that he did, the petitioner argues, the record reflects that he exercised
reasonable diligence. (Id. at 16-17.)
The parties dispute whether the petitioner exercised reasonable diligence during the three
years that passed between his vaccination and the filing of his petition. Whether the petitioner
exercised reasonable diligence across that three-year period need not be addressed however,
because the petitioner did not exercise reasonable diligence when it counted.
The petitioner chose to mail his petition by first-class certified mail, which provided him
with tracking information. The petitioner did not mail his petition until the Saturday following
the Thanksgiving holiday in 2022. The period between Thanksgiving and Christmas is widely
recognized as the busiest time of the year for the Postal Service.4 (ECF 38-3 at 22-23.)
4 A Postal Service press release notes that the Postal Service delivered 11.7 billion letters and
packages during the holiday season in 2022. U.S. Postal Service Ready to Deliver for America
During the Holidays, United States Postal Service (Sept. 19, 2023),
https://about.usps.com/newsroom/national-releases/ (Select year 2023; then navigate to
“09/19/23” hyperlink) (last visited Mar. 13, 2025).
6

Case 1:22-vv-01790-RAH Document 56 Filed 03/27/25 Page 7 of 8
The petitioner wisely chose to receive tracking information for the mail containing his
petition because he had a firm deadline to meet. After mailing his petition, the petitioner had
ample opportunity to review the Postal Service’s tracking information. As the deadline for the
filing of a timely petition neared, he could and should have observed that the envelope had not
been delivered; indeed, the envelope appeared to be lost in the system, as no tracking
information existed for it between November 30 and the date it finally arrived, December 7. The
record is devoid of any indication that the petitioner took any action when the envelope
containing his petition appeared to be delayed or lost.
At a minimum, a reasonably diligent person would have paid special attention to the
tracking information during the Postal Service’s peak delivery season. A reasonably diligent
person would have foreseen that his envelope, mailed during the holiday season by first-class
mail, might be delayed. By opting to pay more for certified mail service that includes tracking,
the petitioner reasonably appeared to take account of that possibility when he mailed his petition.
Had the petitioner continued to exercise reasonable diligence, he would have tracked his
envelope and observed that there was no record of its delivery as the deadline for filing the
petition grew ever closer. He does not appear to have used the tracking service to observe the
delay in his time-sensitive mailing. Upon realizing that the envelope with the petition would
apparently fail to arrive by the deadline, a reasonably diligent person would have re-sent the
petition by guaranteed overnight delivery, a service the Postal Service offers. Had he recognized
as late as December 5—a date beyond the normal three-to-five-day delivery window for first-
class mail—that the letter had not yet been delivered, he could have gone to the post office that
same day with a copy of the petition and selected a guaranteed next-day delivery option.
By failing to monitor the status of the delivery of his petition through the tracking option
for which he had paid and failing to respond to the apparent delay in the delivery during the
Postal Service’s peak mailing season, when delays should reasonably have been anticipated, the
petitioner failed to exercise reasonable diligence. To have the tracking information and not make
appropriate use of it demonstrates a lack of reasonable diligence. By failing to exercise
reasonable diligence under the circumstances, the petitioner cannot meet the first prong of the
test to support the application of equitable tolling.5
VII. CONCLUSION
There is no question that the petition was filed a day after the three-year statute of
limitations had expired. The petitioner seeks to toll the statute of limitations to allow for the late
filing. The petitioner must demonstrate that he exercised reasonable diligence based on a
consideration of all relevant facts and circumstances. By paying for tracking and then failing to
5 Because the petitioner cannot satisfy the reasonable diligence part of the test, and he must
satisfy both prongs to invoke equitable tolling, the question of whether extraordinary
circumstances exist need not be addressed, because even if they do the petitioner cannot prevail.
7

Case 1:22-vv-01790-RAH Document 56 Filed 03/27/25 Page 8 of 8
use it to catch the delay in the delivery of his petition and responding appropriately, the
petitioner has failed to meet his burden.
Although the outcome is harsh and unfortunate, the special master applied the correct
legal standard to determine if equitable tolling of the statute of limitations was appropriate. The
special master’s factual findings are supported by the record, and her legal determinations,
reviewed de novo here, were correct. Accordingly, the petitioner fails to satisfy one of the
elements required for equitable tolling.
The special master’s decision is sustained, and the petitioner’s motion for review (ECF
44) is DENIED. The Clerk is DIRECTED to enter judgment for the respondent.
It is so ORDERED.
s/ Richard A. Hertling
Richard A. Hertling
Judge
8

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_22-vv-01790-2
Date issued/filed: 2025-03-27
Pages: 8
Docket text: **RE-DOCKETED 56 FOR PUBLICATION**JUDGE VACCINE UNREPORTED OPINION (PUBLIC VERSION) on 50 Order on Motion for Review, Judge Vaccine Order/Opinion, Signed by Judge Richard A. Hertling. (fm) Service on parties made.
--------------------------------------------------------------------------------
Case 1:22-vv-01790-RAH Document 57 Filed 03/27/25 Page 1 of 8
In the United States Court of Federal Claims
No. 22-1790v
Filed: March 27, 2025 *
NOT FOR PUBLICATION
LAURENCE CHITLIK,
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Greg Tinch, Tinch Law Firm, College Park, MD, for the petitioner.
Kimberly Shubert Davey, Torts Branch, Civil Division, U.S. Department of Justice, Washington,
DC, for the respondent.
MEMORANDUM OPINION AND ORDER
HERTLING, Judge
The petitioner, Laurence Chitlik, filed a petition under the National Vaccine Injury
Compensation Program (“Vaccine Program”), 42 U.S.C. § 300aa et seq., alleging that an
influenza (“flu”) vaccine he received on December 5, 2019, caused him to suffer a shoulder
injury related to vaccine administration (“SIRVA”). After the petitioner filed an amended
petition alleging the vaccine had been administered on December 6, 2019, the special master
dismissed the petition because it was filed one day after the expiration of the three-year statute of
limitations established by 42 U.S.C. § 300aa-16. Chitlik v. Sec’y of Health & Hum. Servs., No.
22-1790, 2024 WL 5346731 (Fed. Cl. Spec. Mstr. Dec. 19, 2024) (“Decision”). The petitioner
seeks review of the dismissal and of the special master’s decision denying his motion for
equitable tolling of the statute of limitations.
Neither party disputes that the petition was filed one day late; the only issue is whether
the facts support equitable tolling of the statute of limitations. The special master’s decision not
to apply equitable tolling to the petitioner’s claim was in accordance with applicable law. The
* Pursuant to Vaccine Rule 18(b), this opinion was filed under seal on March 17, 2025, and the
parties were directed to propose redactions of confidential information. The petitioner proposed
two redactions (ECF 54) that are accepted (ECF 55) and denoted by [⁎ ⁎ ⁎].

Case 1:22-vv-01790-RAH Document 57 Filed 03/27/25 Page 2 of 8
petitioner fails to demonstrate that he exercised reasonable diligence in mailing his petition as the
deadline approached. Accordingly, the petitioner’s motion for review is denied.
I. FACTUAL BACKGROUND
The underlying facts are not in dispute. The factual record consists of an affidavit from
the petitioner describing his vaccination, the onset of his symptoms, a list of his medical
providers, and the physical limitations attributed to the SIRVA. (ECF 37-1.) The petitioner also
submitted his medical records (ECF 10), reflected in the Administrative Record (“AR”).2 At this
stage of the proceedings, the petitioner’s allegations are assumed to be true.
A. Vaccination and Onset of Symptoms
On December 6, 2019, the petitioner, then a 71-year-old Maryland resident, received a flu
vaccine in his left shoulder and “immediately” began experiencing pain in that shoulder.3 (ECF
10-1 at 1; ECF 35-2; ECF 37-1 at ¶ 3.) Within 48 hours, the petitioner’s range of motion was
severely limited. (ECF 37-1 at ¶ 4.) Beginning on January 27, 2020, the petitioner started
receiving physical therapy on the affected shoulder. (Id. at ¶ 6.)
A. COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of COVD-19 a
global pandemic. As a result, the Court of Federal Claims restricted public access to the
National Courts Building and the Annex that houses the Office of the Special Master. Order
Restricting Public Access to the Howard T. Markey National Courts Building, (Fed. Cl. Mar. 16,
2020). On March 18, 2020, the Court of Federal Claims suspended paper filing requirements in
pro se cases. General Order Suspending Paper Filing Requirements in Pro Se Cases, (Fed. Cl.
Mar. 18, 2020). The court did not, however, suspend the rule requiring pro se litigants to file
case-initiating documents in paper form. The March 18 Order required pro se litigants to
2 The AR contains the petitioner’s medical records, submitted on a USB drive. The page
numbers of the AR reflect the page numbers of these records on the USB drive.
3 There was some disagreement over whether the vaccine was administered on December 5
or December 6, 2019. The original petition alleged the date as December 5. (ECF 1 at 1.) The
amended petition alleges December 6. (ECF 37 at 2.) The pharmacy record reflects both dates
in different locations. (ECF 10-1 at 1.) The respondent now agrees that the vaccine was
administered on December 6. In his motion for review, the petitioner argues that the special
master’s conclusion that the vaccine was administered on December 5, 2019, is arbitrary and
capricious. As both the petitioner and respondent now agree, the 36-month statute of limitations
expired on December 6, 2022. Because the petitioner acknowledges that the petition was filed
late, any error by the special master regarding the date of vaccine administration and related
issues is harmless.
2

Case 1:22-vv-01790-RAH Document 57 Filed 03/27/25 Page 3 of 8
continue to deliver case-initiating documents “either through the U.S. Postal Service [ ] or by
deposit in the court’s night box.” Id.
B. Petitioner’s Other Medical Problems
After the onset of his shoulder injury, the petitioner underwent treatment for several
chronic conditions. (ECF 37-1 at ¶ 7.) Due to the pandemic and the petitioner’s comorbidities,
the treatments the petitioner required were delayed so that he could receive his COVID-19
vaccinations. (AR 1024.) Following the administration of COVID-19 vaccinations, on [⁎ ⁎ ⁎],
the petitioner had lung surgery under general anesthesia. (Id. at 16, 640, 648.) Five months
later, on [⁎ ⁎ ⁎], the petitioner underwent abdominal surgery under general anesthesia. (Id. at 76,
152.)
C. Mailing the petition
On November 26, 2022, the petitioner mailed a pro se petition for compensation under
the Vaccine Program and supporting exhibits to the Clerk of the Court of Federal Claims via
certified first-class mail. (ECF 37-1 at ¶ 10.) He mailed the documents from his local post office
in Cambridge, Maryland. (ECF 38-1 at 2.) Certified first-class mail is tracked, and the tracking
allows the sender to access a website, enter a unique identifier for the envelope, and track its
location. Based on the tracking slip supplied by the petitioner, the Postal Service received the
envelope containing the petition on November 26, 2022, at 10:40 a.m. (Id.) At 11:47 a.m. that
same day, the envelope containing the petition left the post office. (Id.) The next entry on the
Postal Service tracking information reflects that on November 30, 2022, the envelope containing
the petition was in transit. (Id.) Eight business days later, on December 7, 2022, the next status
update in the tracking record shows that at 10:39 a.m., the envelope containing the petition
arrived at a Postal Service facility in Washington, D.C. (Id.) The tracking record is silent as to
the whereabouts of the envelope between November 26 and November 30 and between
November 30 and December 7. At 11:33 a.m. on December 7, 2022, the envelope containing the
petition was delivered to the Clerk’s office. (Id.) The petition arrived 11 calendar days and nine
Postal Service business days after it was mailed. The Clerk filed the petition the same day it was
received. (ECF 1.) The parties do not dispute that the statutory 36-month statute of limitations
had expired on December 6, 2022.
II. PROCEDURAL HISTORY
On December 7, 2022, the petitioner’s pro se petition for compensation in the Vaccine
Program was received and filed by the Clerk’s office. (Id.) The petitioner alleged that on
December 5, 2019, he had received a flu vaccine that caused him a SIRVA. (Id.) There is no
dispute that the petition was filed after the statute of limitations had expired.
The petitioner subsequently retained counsel and filed an amended petition on September
4, 2024. (ECF 37.) The amended petition alleges a Table SIRVA claim, a causation-in-fact
SIRVA claim, and a claim for the significant aggravation of a pre-existing injury, all arising
from a flu vaccine received on December 6, 2019. On the same day he filed the amended
3

Case 1:22-vv-01790-RAH Document 57 Filed 03/27/25 Page 4 of 8
petition, the petitioner filed a motion to toll the statute of limitations. (ECF 38.) The respondent
opposed the motion. (ECF 40.)
III. THE SPECIAL MASTER’S DECISION
On December 19, 2024, the special master denied the motion for equitable tolling and
dismissed the petition as untimely. The special master noted that the statute of limitations for the
Vaccine Act is 36 months after the first symptom or manifestation of onset of the alleged
vaccine-related injury. Decision, at *4. She also noted that under Cloer v. Sec’y of Health &
Hum. Servs., 654 F.3d 1322 (Fed. Cir. 2011) (en banc), equitable tolling can apply to claims in
the Vaccine Program. Id. As here, the parties did not dispute before the special master that the
petition was filed after the expiration of the statute of limitations. Id.
To determine whether the petitioner met the standard for equitable tolling, the special
master applied a two-element test: (1) whether the petitioner had pursued his rights diligently,
and (2) whether extraordinary circumstances had prevented the filing of a timely claim. Id.
(citing K.G. v. Sec’y of Health & Hum. Servs., 951 F.3d 1374, 1379 (Fed. Cir. 2020) (citing
Menominee Indian Tribe of Wisc. v. United States, 577 U.S. 250, 255 (2016)); Crawley v. United
States, 157 Fed. Cl. 178, 181 (2021)).
The special master found that the petitioner had not met either prong of the test. She
found that the petitioner had not diligently pursued his rights, explaining that the petitioner
“could have avoided an untimely delivery of his petition by choosing overnight delivery or
Priority Mail Express with a next-day to two-day delivery guarantee.” Decision, at *5. Instead,
the petitioner had sent his petition by standard, first-class mail. The special master found it
significant that the petitioner had selected a mailing method that had no guaranteed delivery
window. Id. As a result, she concluded the selection of a delivery method without a guaranteed
delivery window failed to demonstrate diligence.
Similarly, the special master concluded that the petitioner had failed to show that
extraordinary circumstances had prevented the filing of a timely claim. Citing to the petitioner’s
own evidentiary submissions, the special master found that delays in standard mail are to be
expected. Id. The special master distinguished the cases on which the petitioner relied to
support equitable tolling by noting that in the cases in which equitable tolling had been applied,
the claimant had relied on delivery services offering guaranteed overnight delivery, which had
been delayed. Id. Moreover, the special master found that the petitioner had not presented
sufficient evidence that the COVID-19 pandemic “substantially affected the mail to cause an
extraordinary circumstance.” Id.
Because the special master determined that the petitioner failed to meet both the diligence
and extraordinary circumstances elements required for the application of equitable tolling to his
late petition, she found that the petitioner’s claims were untimely, and equitable tolling could not
extend the filing deadline. (Id.) She therefore dismissed the petition as untimely. (Id.)
4

Case 1:22-vv-01790-RAH Document 57 Filed 03/27/25 Page 5 of 8
IV. STANDARD OF REVIEW
The Court of Federal Claims has jurisdiction to review the decisions of special masters
under the Vaccine Program. 42 U.S.C. § 300aa-12(e). Pursuant to this jurisdiction, the court
may “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. § 300aa-12(e)(2)(B); see also Rule
27(b), Appendix B to the Rules of the Court of Federal Claims (“RCFC”).
The issue of whether the equitable tolling of a statute of limitations is warranted is a
question of law that the court reviews de novo. See, e.g., Falzon v. Sec’y of Health & Hum.
Servs., No. 21-1082, 2023 WL 395879, at *8 (Fed. Cl. Jan. 25, 2023), aff’d, No. 2023-1659,
2024 WL 3407439 (Fed. Cir. July 15, 2024); Goetz v. Sec’y of Health & Hum. Servs., 45 Fed. Cl.
340, 341 (1999), aff’d, 4 F. App’x 827 (Fed. Cir. 2001). Likewise, the application of a legal
standard to a set of undisputed facts is reviewed de novo. Former Emps. of Sonoco Prods. Co. v.
Chao, 372 F.3d 1291, 1295 (Fed. Cir. 2004) (“cases . . . requiring application of the appropriate
standard to undisputed facts, are properly questions of law reviewed de novo.”).
The respondent does not dispute the facts related to the motion for equitable tolling, so
the highly deferential standard of review of a special master’s factual findings is not implicated
in the petitioner’s motion for review.
V. TOLLING THE VACCINE PROGRAM STATUTE OF LIMITATIONS
The doctrine of equitable tolling can apply to Vaccine Program claims in limited
circumstances. See Cloer, 654 F.3d at 1340-41. To support a claim for equitable tolling, a party
must show the exercise of reasonable diligence and the existence of extraordinary circumstances
that prevented a timely pleading. Equitable tolling is to be used “sparingly” and its application
has been limited to cases involving deception or the timely filing of a procedurally defective
pleading. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). Circumstances that
“threaten[ ] to deprive a [petitioner] of [his] claim” are not extraordinary and are thus insufficient
to support the application of equitable tolling. Cloer, 654 F.3d at 1344-45; see also Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005) (for equitable tolling to apply, a litigant must have
diligently pursued his rights but “some extraordinary circumstance stood in his way”).
A party seeking to invoke equitable tolling has the burden to prove both that (1) he
diligently pursued his rights and (2) some extraordinary circumstance beyond his control
prevented him from filing a timely petition to demonstrate an entitlement to equitable tolling.
Menominee Indian Tribe, 577 U.S. at 255; see also Pace, 544 U.S. at 418 (“Generally, a litigant
seeking equitable tolling bears the burden of establishing two elements”).
The failure by the party seeking to invoke the doctrine to demonstrate either element of
the test precludes application of equitable tolling. Menominee Indian Tribe, 577 U.S. at 256
(“we have treated the two requirements as distinct elements in practice, too, rejecting requests for
equitable tolling where a litigant failed to satisfy one without addressing whether he satisfied the
other”).
5

Case 1:22-vv-01790-RAH Document 57 Filed 03/27/25 Page 6 of 8
VI. DISCUSSION
The petitioner’s motion before the special master and the motion for review fails to show
that the petitioner exercised reasonable diligence. Reviewed de novo, the special master’s
conclusion that the petitioner failed to demonstrate reasonable diligence is correct and supported
by the record. Because the petitioner failed to pursue his claim diligently, the issue of whether
extraordinary circumstances prevented the filing of a timely petition need not be addressed.
The diligence required for equitable tolling is “‘reasonable diligence,’ not ‘maximum
feasible diligence.’” Checo v. Shinseki, 748 F.3d 1373, 1380 (Fed. Cir. 2014) (quoting Holland
v. Florida, 560 U.S. 631, 653 (2010)). Moreover, “the reasonable diligence inquiry must also be
based on a consideration of all relevant facts and circumstances.” K.G., 951 F.3d at 1382.
In his motion for review, the petitioner argues that the special master improperly relied
on an overly narrow and mechanistic application of the relevant facts. (ECF 44-1 at 17.)
Specifically, he argues that the special master’s determination of the petitioner’s diligence was
based solely on the class of mail service the petitioner opted to use. The petitioner claims that
the special master’s failure to consider “all relevant facts and circumstances” is contrary to case
law. (Id.)
Moreover, the petitioner argues that whether a party has exercised the required level of
diligence is a fact-specific inquiry dependent on the individual’s circumstances. (Id. at 16.) He
argues that he is elderly and a lay person; in the wake of the COVID-19 pandemic, he underwent
two serious surgeries, then had to research the Vaccine Program’s requirements, gather the
necessary medical evidence, prepare his own petition, and arrange for the delivery of the
petition. Given all that he did, the petitioner argues, the record reflects that he exercised
reasonable diligence. (Id. at 16-17.)
The parties dispute whether the petitioner exercised reasonable diligence during the three
years that passed between his vaccination and the filing of his petition. Whether the petitioner
exercised reasonable diligence across that three-year period need not be addressed however,
because the petitioner did not exercise reasonable diligence when it counted.
The petitioner chose to mail his petition by first-class certified mail, which provided him
with tracking information. The petitioner did not mail his petition until the Saturday following
the Thanksgiving holiday in 2022. The period between Thanksgiving and Christmas is widely
recognized as the busiest time of the year for the Postal Service.4 (ECF 38-3 at 22-23.)
4 A Postal Service press release notes that the Postal Service delivered 11.7 billion letters and
packages during the holiday season in 2022. U.S. Postal Service Ready to Deliver for America
During the Holidays, United States Postal Service (Sept. 19, 2023),
https://about.usps.com/newsroom/national-releases/ (Select year 2023; then navigate to
“09/19/23” hyperlink) (last visited Mar. 13, 2025).
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Case 1:22-vv-01790-RAH Document 57 Filed 03/27/25 Page 7 of 8
The petitioner wisely chose to receive tracking information for the mail containing his
petition because he had a firm deadline to meet. After mailing his petition, the petitioner had
ample opportunity to review the Postal Service’s tracking information. As the deadline for the
filing of a timely petition neared, he could and should have observed that the envelope had not
been delivered; indeed, the envelope appeared to be lost in the system, as no tracking
information existed for it between November 30 and the date it finally arrived, December 7. The
record is devoid of any indication that the petitioner took any action when the envelope
containing his petition appeared to be delayed or lost.
At a minimum, a reasonably diligent person would have paid special attention to the
tracking information during the Postal Service’s peak delivery season. A reasonably diligent
person would have foreseen that his envelope, mailed during the holiday season by first-class
mail, might be delayed. By opting to pay more for certified mail service that includes tracking,
the petitioner reasonably appeared to take account of that possibility when he mailed his petition.
Had the petitioner continued to exercise reasonable diligence, he would have tracked his
envelope and observed that there was no record of its delivery as the deadline for filing the
petition grew ever closer. He does not appear to have used the tracking service to observe the
delay in his time-sensitive mailing. Upon realizing that the envelope with the petition would
apparently fail to arrive by the deadline, a reasonably diligent person would have re-sent the
petition by guaranteed overnight delivery, a service the Postal Service offers. Had he recognized
as late as December 5—a date beyond the normal three-to-five-day delivery window for first-
class mail—that the letter had not yet been delivered, he could have gone to the post office that
same day with a copy of the petition and selected a guaranteed next-day delivery option.
By failing to monitor the status of the delivery of his petition through the tracking option
for which he had paid and failing to respond to the apparent delay in the delivery during the
Postal Service’s peak mailing season, when delays should reasonably have been anticipated, the
petitioner failed to exercise reasonable diligence. To have the tracking information and not make
appropriate use of it demonstrates a lack of reasonable diligence. By failing to exercise
reasonable diligence under the circumstances, the petitioner cannot meet the first prong of the
test to support the application of equitable tolling.5
VII. CONCLUSION
There is no question that the petition was filed a day after the three-year statute of
limitations had expired. The petitioner seeks to toll the statute of limitations to allow for the late
filing. The petitioner must demonstrate that he exercised reasonable diligence based on a
consideration of all relevant facts and circumstances. By paying for tracking and then failing to
5 Because the petitioner cannot satisfy the reasonable diligence part of the test, and he must
satisfy both prongs to invoke equitable tolling, the question of whether extraordinary
circumstances exist need not be addressed, because even if they do the petitioner cannot prevail.
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use it to catch the delay in the delivery of his petition and responding appropriately, the
petitioner has failed to meet his burden.
Although the outcome is harsh and unfortunate, the special master applied the correct
legal standard to determine if equitable tolling of the statute of limitations was appropriate. The
special master’s factual findings are supported by the record, and her legal determinations,
reviewed de novo here, were correct. Accordingly, the petitioner fails to satisfy one of the
elements required for equitable tolling.
The special master’s decision is sustained, and the petitioner’s motion for review (ECF
44) is DENIED. The Clerk is DIRECTED to enter judgment for the respondent.
It is so ORDERED.
s/ Richard A. Hertling
Richard A. Hertling
Judge
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