VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_90-vv-02152
Package ID: USCOURTS-cofc-1_90-vv-02152
Petitioner: Ciaccio
Filed: 1992-11-20
Decided: 1992-11-20
Vaccine: 
Vaccination date: 
Condition: 
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
An unnamed petitioner filed a claim under the National Vaccine Injury Compensation Program. The specific vaccine and alleged injury are not described in the available case document.

The special master filed a decision on June 19, 1992. Petitioners had thirty days to file a motion for review; the deadline fell on Monday, July 20, 1992. The office of petitioners' counsel received the special master's decision on July 6, 1992. Petitioners' counsel was out of town between June 27 and July 17, 1992. On July 21, 1992 — one day past the deadline — petitioners' counsel filed a motion for review along with a motion for an extension of time to file a memorandum of objections. The Clerk of Court entered judgment in accordance with the special master's decision.

Petitioners moved to vacate the judgment under RUSCC 60(b), arguing that the one-day delay constituted excusable neglect. Judge Margolis denied the motion. The court noted that the office had nearly two weeks from the date it received the special master's decision (July 6) in which to file the motion before the deadline. Even if the office could not act during counsel's absence, counsel returned on July 17 and had two full days before the July 20 deadline in which to file a timely motion. The approach of filing a timely motion for review while seeking an extension of time to file the substantive memorandum of objections had been available and successfully used by the same counsel in a prior vaccine case (Ormechea v. Secretary of HHS, No. 90-1683V (Cl.Ct. July 13, 1992)). The court held that counsel's failure to file a timely motion amounted to a mistake, and that attorney mistake without more does not constitute excusable neglect sufficient to vacate a final judgment.

Theory of causation field:
Vaccine and injury not identified in available document (procedural order only). DISMISSED. Petitioners' motion for review filed one day late (July 21, 1992 vs. July 20, 1992 deadline). Motion to vacate judgment under RUSCC 60(b) denied — CFC Judge Margolis (Nov 20, 1992): counsel's one-day late filing was mistake, not excusable neglect; office had 2 weeks before deadline; counsel had 2 days after return.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_90-vv-02152-cl6643367
Date issued/filed: 1992-11-20
Pages: 1
Docket text: lead-opinion
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ORDER

MARGOLIS, Judge.
Petitioners failed to file a motion for review of the special master’s decision within the 30-day statutory period, and the clerk entered judgment in accordance with that decision. Petitioners move to vacate the judgment.

FACTS

Entry of judgment in accordance with the special master’s decision is automatic unless a motion for review is filed within 30 days after the date on which that decision is filed. Vaccine Rule 11(a). The special master filed a decision on June 19, 1992. The office of petitioners’ counsel (“office”) received the special master’s decision on July 6, 1992. Petitioners’ counsel (“counsel”) was out of town between June 27 and July 17, 1992. Petitioners’ motion for review was due on Monday, July 20, 1992. Counsel filed the motion for review and a motion for extension of time in which to file their memorandum of objections on July 21, 1992, one day late.

DISCUSSION

Petitioners request relief from judgment under RUSCC 60(b) which states in relevant part:

On motion and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment, order, or proceeding for ... mistake, inadvertence, surprise, or excusable neglect[.]
“[Rjelief under this rule is not granted lightly. A ‘motion for relief from judgment [pursuant to RUSCC 60(b) ] is one for extraordinary relief entrusted to the discretion of the Court ... which may be granted only in exceptional circumstances.’ ” Widdoss v. United States, 24 Cl.Ct. 547, 552 (1991) (citing Placeway Constr. Corp. v. United States, 19 Cl.Ct. 484, 488 (1990)).

Counsel’s office had nearly two weeks before the filing deadline in which to prepare and file the required motion. Even if the office could not have acted in her absence, counsel had two days after her return in which to file the motion.

Counsel could have preserved her clients’ rights by submitting a timely motion for review, or by directing her office to do so. Counsel could then ask for an extension of time in which to file their memorandum of objections (as petitioners did here). This counsel was previously successful in using this approach. See Ormechea v. Secretary of Health and Human Services, No. 90-1683V, 1992 WL 151816 (Cl.Ct. July 13, 1992) (notice granting petitioners’ motion for an extension of time to file their memorandum of objections after filing of a timely motion for review).

The conduct of petitioners’ counsel essentially amounts to a mistake. However, “[mjistake of counsel, without more, is not considered excusable neglect for not filing a timely notice of appeal.” Cleek Aviation v. United States, 22 Cl.Ct. 260, 262 (1991).

CONCLUSION

This court concludes that petitioners’ counsel could have avoided an untimely filing of the motion for review and motion for extension of time in which to file their memorandum of objections. Her mistake *204did not amount to excusable neglect. Accordingly, it is hereby ORDERED:

Petitioners’ motion to vacate the judgment of July 21, 1992 is DENIED.