Destry and Damien Decker v. HHS - other (2001)

Petitioners — the parents of twins Destry and Damien Decker — sought compensation under the National Childhood Vaccine Injury Act for alleged vaccine-related injuries sustained by their twin children. This opinion does not reach the merits of the underlying claim.

The special master issued a decision dismissing the petition on April 30, 2001. Under 42 U.S.C. § 300aa-12(e)(1), petitioners had 30 days to file a motion for review — a deadline of May 30, 2001.

The motion for review was not received by the Clerk of the Court until May 31, 2001, one day after the deadline. The Clerk entered judgment in accordance with the special master's dismissal decision pursuant to § 300aa-12(e)(3).

The late filing arose from a series of misfortunes involving a UPS delivery. On May 29, 2001 — the day before the deadline — a paralegal at petitioners' counsel's office, Melissa Lasiter, attempted to send the motion for review via UPS Next Day Air.

She went first to the Cheyenne Airport drop box, but an airport employee incorrectly told her that UPS had discontinued that drop box. (In fact, the airport drop box was still operating with a 7:00 p.m. scheduled pickup time.) Ms. Lasiter then telephoned UPS's toll-free number and was directed to a drop box at 2310 West Lincolnway.

She placed the package in the Lincolnway drop box "shortly after 6:00 p.m." The Lincolnway drop box had a posted scheduled pickup time of 5:00 p.m., which Ms. Lasiter did not observe.

As a result, the package was not picked up until May 30, 2001 at 5:00 p.m., and was delivered to the court on May 31, 2001 — one day late. Petitioners filed a Motion for Reconsideration, For Relief from Judgment, and For New Trial, advancing four arguments: (1) that RCFC 6(c) added three calendar days to the filing period because the special master's decision was served by mail rather than by hand, making the motion timely; (2) that RCFC 60(b)'s excusable neglect standard warranted relief from judgment; (3) that equitable tolling applied to section 12(e)(1) of the Vaccine Act; and (4) that a new trial was necessary to address the underlying merits.

Judge Bush, writing for the Court of Federal Claims on December 14, 2001, denied the motion on all four grounds. As to RCFC 6(c), the court held that the rule did not apply because the 30-day period under section 12(e)(1) is a jurisdictional limitation that begins when the special master's decision is filed — not when it is served — as established by the Federal Circuit in Hervey v.

HHS, 88 F.3d 1001 (Fed. Cir. 1996) and Widdoss v.

HHS, 989 F.2d 1170 (Fed. Cir. 1993).

A court rule cannot enlarge its own jurisdiction. As to RCFC 60(b), the court held that the rule similarly cannot be used to circumvent the jurisdictional bar of section 12(e)(1), as the Federal Circuit had squarely decided in Widdoss, Gilbert v.

HHS, 51 F.3d 254 (Fed. Cir. 1995), and Patton v.

HHS, 25 F.3d 1021 (Fed. Cir. 1994).

As to equitable tolling, the court acknowledged that a prior decision of this court, Raspberry v. HHS, 32 Fed.

Cl. 777 (1995), had held that section 12(e)(1) was subject to equitable tolling. However, the court concluded that Brice v.

HHS, 240 F.3d 1367 (Fed. Cir. 2001), decided by the Federal Circuit after Raspberry, had effectively overruled it.

In Brice, the Federal Circuit examined the full legislative history of the Vaccine Act and concluded that Congress intended the Act's strict deadlines to operate without equitable exception — finding that equitable tolling would interfere with the Act's goal of expeditious resolution of claims, and noting that the Act's specific, enumerated exceptions to limitations periods did not include equitable tolling. The court also rejected petitioners' argument that the Vaccine Act should be likened to the Veterans Program, as the Federal Circuit had already addressed and rejected that analogy in Brice.

Even assuming arguendo that equitable tolling were available, the court found it would not be warranted on these facts: unlike Raspberry, where the courier itself had failed, here the failure was attributable to Ms. Lasiter's own failure to observe the posted 5:00 p.m. pickup time on the Lincolnway drop box.

She had been misdirected by an airport employee who was not a UPS agent and had relied on a UPS representative's information about pickup times without verifying it against the sign on the actual drop box. The court also noted that counsel had on at least two other prior occasions filed late motions for review and sought equitable tolling, a pattern inconsistent with the due diligence the doctrine requires.

Because the motion failed on jurisdictional grounds, the court did not reach the question of whether a new trial was warranted.