Edith Thornton v. HHS - IPV/Polio, complete paralysis, followed by crippling and debilitating pain (1995)

Edith Thornton filed a petition for compensation under the National Childhood Vaccine Injury Act on October 1, 1990, alleging that she sustained complete paralysis followed by crippling and debilitating pain, adversely affecting her health and employability, as a result of a Monovalent Sabin Type 1 oral polio vaccine administered on May 19, 1963. Chief Special Master Golkiewicz held an evidentiary hearing on March 28, 1995, in Atlanta, Georgia.

Petitioner appeared with her then-attorney of record, A. Leroy Toliver.

On June 2, 1995, the Chief Special Master issued an unpublished decision holding that petitioner had not demonstrated by a preponderance of the evidence that the polio vaccination she received was either the presumptive cause or the factual cause of her medical problems, and ruled that she was not entitled to compensation. Under the Vaccine Act and Vaccine Rule 23, petitioner had thirty days from June 2, 1995, to file a motion for review — a deadline of July 3, 1995.

On June 30, 1995 — the day before the deadline — petitioner received a letter from attorney Toliver informing her that no appeal had been filed and that he had no intention of filing one. Operating pro se, petitioner promptly prepared a handwritten request for a thirty-day extension, signed and dated July 1, 1995, and mailed it to the court that same day.

The clerk's office received it on July 5, 1995, stamped it received, and also entered judgment in the case that day. Petitioner's situation was compounded by unusual circumstances: Monday, July 3, the filing deadline, was the day before Independence Day, and the clerk's office received only a morning mail delivery that day rather than the usual two.

Petitioner also telephoned the clerk's office on July 3 to inquire whether her filing had arrived, demonstrating her concern to comply with the deadline. Judge Horn found the circumstances unique and concluded that justice would be best served by permitting review, noting uncertainty about whether petitioner's mailing had reached the court on time.

The court also observed that recent Federal Circuit authority had called into question whether statutory time bars in sovereign immunity cases are subject to strict per se rules, citing Henke v. United States, 60 F.3d 795 (Fed.

Cir. 1995), and the Supreme Court's decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), recognizing equitable tolling principles against the government.

The court vacated the judgment entered by the clerk on July 5, 1995, and granted petitioner until September 7, 1995, to file a completed memorandum of objections and motion for review. The court took no position on the merits of the special master's dismissal.

Counsel for respondent informed the court that the Department of Justice would not seek reconsideration of the order. The available case document covers only this procedural extension order; the ultimate resolution of petitioner's motion for review, and the basis for the final dismissal recorded in the case database, is not described in the available staging text.