Evans v. HHS - other (1994)

An unnamed petitioner filed a petition under the National Childhood Vaccine Injury Act on behalf of his daughter for an unspecified vaccine-related injury. The vaccine was administered in Florida.

The specific vaccine and injury are not described in the available case document, which concerns only a motion to revoke an election filed under 42 U.S.C. § 300aa-21(a). The petition was dismissed by the special master.

This court upheld the dismissal in an unpublished order on March 9, 1992, and the Federal Circuit affirmed the dismissal. See 976 F.2d 748 (Table).

Final judgment was entered on August 14, 1992. On August 25, 1992, petitioner filed a request with the special master for attorneys' fees and costs.

On September 3, 1992 — approximately twenty days after final judgment, and well within the ninety-day election window — petitioner filed an election under 42 U.S.C. § 300aa-21(a) to reject the judgment and to pursue a civil action in Florida state court. Respondent objected to the fee request on September 8, 1992, and petitioner replied on September 21, 1992.

The special master awarded fees of $18,598.50 and costs of $3,059.27. Respondent moved for review, contending that a petitioner who rejects the judgment and elects to file a civil action may not simultaneously recover attorneys' fees from the Program.

By order dated December 15, 1992, the court suspended proceedings on the fee dispute pending the Federal Circuit's decision in Saunders v. Secretary of DHHS, 26 Cl.Ct. 1221 (1992), which addressed the same issue.

On October 18, 1993 — more than a year after filing his election — petitioner filed a motion asking the court to: (1) deem his previously filed notice of election to file a civil action withdrawn; (2) enter judgment awarding attorneys' fees and costs; and (3) accept the prior judgment of the court dismissing the petition. The reason petitioner offered was that his California counsel had consulted a Florida attorney who advised that any civil action in Florida would be time-barred by the applicable Florida statute of limitations — meaning the civil action petitioner elected to pursue was never actually viable.

Senior Judge Lydon denied the motion on February 28, 1994. The court held that an election under 42 U.S.C. § 300aa-21(a), once voluntarily filed within the ninety-day election period, is irrevocable.

Nothing in the Vaccine Act expressly authorizes revocation of an election, and Congress's silence was significant: time limits under the Act are strictly construed, and Congress expressly addressed other situations requiring firm choices (such as the pre-Act election to file under the Program or pursue civil litigation). The court analogized to the Contract Disputes Act, under which a contractor's election to appeal to a board of contract appeals, once made, is binding and forecloses a later direct appeal to the Court of Federal Claims.

The same principle applied here: permitting revocation of elections after the ninety-day period would deprive the time limitation of real effect and invite confusion and manipulation. The court noted that petitioner's counsel had signed the election in September 1992 and should have gauged the viability of a Florida civil action at that time.

The case remained suspended pending the Federal Circuit's resolution of Saunders.