Veronica and Carey Gilbert (for son Steven) v. HHS - DPT/DTP, vaccine-related injuries (1994)

Veronica and Carey Gilbert filed a petition, on behalf of their son, Steven, for vaccine-related injuries allegedly suffered after a DPT vaccination. Their claim had previously been denied by a special master, and this denial was affirmed by the Court of Federal Claims on August 6, 1993.

According to the National Childhood Vaccine Injury Act of 1986 (the Vaccine Act), petitioners had 90 days from the August 6, 1993, judgment to file a written election with the Court of Federal Claims, either to accept the judgment or to file a civil action for damages. Instead of filing this election, the Gilberts filed a civil action in the District Court for the Eastern District of Michigan seeking damages from the vaccine administrator and manufacturer.

The United States moved to dismiss the district court action, arguing that the Gilberts' failure to file a timely election in the Court of Federal Claims meant they were deemed to have accepted the prior judgment and were therefore barred from further action under Section 21(a) of the Vaccine Act. The Gilberts then filed a motion in the Court of Federal Claims seeking leave to file a late election.

The court, in an order dated May 17, 1994, denied this motion. The court held that the statutory deadlines for filing an election under Section 21(a) are jurisdictional and cannot be extended by court rules such as Rule 60(b) of the Rules of the Court of Federal Claims (RCFC 60(b)).

The court emphasized that Congress established these binding deadlines and that the court lacked the authority to override them, citing Finley v. United States and Widdoss v.

Secretary, HHS. The court noted that petitioners' counsel candidly admitted an inadvertent failure to file the election and stressed the potential inequity, but stated that the court lacked discretion to grant the motion based on equities or perceived prejudice, as it was bound to apply the statutory ground rules as written.

Consequently, the Gilberts' motion for leave to file a late election was denied, effectively dismissing their attempt to pursue further action.