NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TIFFANY S. GAITER, ON BEHALF OF D. S. G., A
MINOR,
Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2019-1784
______________________
Appeal from the United States Court of Federal Claims
in No. 1:17-vv-01040-MBH, Senior Judge Marian Blank
Horn.
______________________
Decided: August 29, 2019
______________________
TIFFANY S. GAITER, Saginaw, MI, pro se.
HEATHER LYNN PEARLMAN, Vaccine/Torts Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
JOSEPH H. HUNT, C. SALVATORE D'ALESSIO, CATHARINE E.
REEVES.
______________________
2 GAITER v. HHS
Before PROST, Chief Judge, PLAGER and O’MALLEY,
Circuit Judges.
PER CURIAM.
Tiffany S. Gaiter appeals from a decision of the United
States Court of Federal Claims (“Claims Court”) dismiss-
ing Ms. Gaiter’s claim under the National Childhood Vac-
cine Injury Act of 1986 (“the Vaccine Act”). 42 U.S.C.
§§ 300aa-1 to -34. The Claims Court concluded that it did
not have jurisdiction to consider Ms. Gaiter’s Notice of Re-
view under 42 U.S.C. § 300aa-12(e)(1)–(2) because it was
not timely filed within thirty days of the Special Master’s
decision. Because Ms. Gaiter’s claim would be dismissed
regardless of whether § 300aa-12(e)(1)–(2) is a jurisdic-
tional prescription, we affirm.
I
This appeal arises from Ms. Gaiter’s petition filed on
August 2, 2017, on behalf of her minor son, D.S.G., pursu-
ant to the Vaccine Act. Ms. Gaiter’s petition alleged that
(a) a measles-mumps-rubella vaccine (“MMR”) D.S.G. re-
ceived on May 22, 2002, caused him to develop an autism
spectrum disorder; and (b) a second dose of MMR vaccine
D.S.G. received on July 16, 2014, significantly aggravated
his existing autism. Following briefing by both parties, on
April 12, 2018, the Special Master issued a sealed order
dismissing the portion of Ms. Gaiter’s claim pertaining to
the 2002 vaccination. See Gaiter v. Sec’y of Health & Hu-
man Servs., No. 17-1040V,
2018 WL 3030961 (Fed. Cl.
Spec. Mstr. Apr. 12, 2018). The Special Master found that
the 2002 claim was barred by the Vaccine Act’s statute of
limitations, which limits claims to thirty-six months from
the first symptom or manifestation of onset.
Id. (citing
§ 16(a)(2)). The Special Master then held a status confer-
ence with the parties on May 2, 2018 and subsequently or-
dered Ms. Gaiter to show cause why the remaining 2014
GAITER v. HHS 3
claim should not be dismissed on the merits. Ms. Gaiter
timely filed a response to that order on June 11, 2018.
Before Respondent replied and the Special Master
reached its decision, on June 25, 2018, Ms. Gaiter filed a
Notice of Appeal to this court at the Claims Court. Shortly
thereafter, Respondent filed a response and then on July 6,
2018, the Special Master issued its final decision, which
dismissed the portion of the case related to the 2014 vac-
cination. Gaiter v. Sec’y of Health & Human Servs., No. 17-
1040V,
2018 WL 3991229 (Fed. Cl. Spec. Mstr. July 6,
2018). In the absence of a notice of review under Vaccine
Rules of the United States Court of Federal Claims Rule
23, the Claims Court entered judgment dismissing the case
on August 9, 2018.
Meanwhile, on July 13, 2018, the Claims Court trans-
mitted Ms. Gaiter’s Notice of Appeal to this court. On Sep-
tember 25, 2018, this court entered its order remanding the
appeal because we lacked jurisdiction to reach the merits
where the Claims Court had never reviewed the Special
Master’s decision. This court ordered that the Claims
Court “consider Ms. Gaiter’s June 25, 2018 submission as
a request for review.” Gaiter v. Sec’y of Health & Human
Servs., No. 2018-2172,
2018 WL 7051506, *2 (Fed. Cir.
Sept. 25, 2018).
On remand, the Claims Court concluded that it did not
have jurisdiction to review the Special Master’s decision in
Ms. Gaiter’s case because her request was not timely made.
Gaiter v. Sec’y of Health & Human Servs.,
142 Fed. Cl. 666,
677–78 (2019). The Claims Court did not reach the merits
of Ms. Gaiter’s case.
Ms. Gaiter appealed. We have jurisdiction under
42 U.S.C. § 300aa-12(f).
II
On appeal, Ms. Gaiter does not argue that the Claims
Court had jurisdiction to review the Special Master’s
4 GAITER v. HHS
decision. Ms. Gaiter only includes arguments directed to
the merits of her case. In particular, Ms. Gaiter argues
that her 2002 claim is not barred by the statute of limita-
tions because that claim should be equitably tolled due to
fraud and that her 2014 claim demonstrates continued
harm. See Appellant’s Br. 1–3 1; Reply Br. 1–2. 2
Ms. Gaiter’s claim of fraud is primarily based on an Au-
gust 2014 letter written by Dr. William W. Thompson,
which she argues proves that the Centers for Disease Con-
trol and Prevention (“CDC”) knowingly concealed infor-
mation linking the MMR vaccine to autism in a sub-group
of patients that includes D.S.G. (i.e., African American
males under the age of thirty-six months). Appellant’s
Br. 1–2; Reply Br. 6, 11, 14–15. Without citing any legal
authority under the Vaccine Act, as “precedent” of fraud,
Ms. Gaiter points us to a prior CDC study known as the
Tuskegee Syphilis Study. Reply Br. 8–10 (citing
https://www.cdc.gov/tuskegee/timeline.htm), 16–17. Ms.
Gaiter states that she has never claimed that the MMR
shot “gave” her son autism. Id. at 13.
The government replies that the Claims Court’s deci-
sion to dismiss this case for lack of jurisdiction should be
affirmed. Appellee’s Br. 9–14. The government argues
that the statute makes clear that only a “decision” may be
reviewed by the Claims Court and that the thirty-day ap-
peal period commences “upon issuance of the special mas-
ter’s decision.” Id. at 10. The government states that the
Claims Court properly concluded that it did not have juris-
diction over Ms. Gaiter’s June 25, 2018 Notice of Review
because at the time of the request there was no appealable
decision and because once the special master issued an
1 Citations are made to Appellant’s informal brief
dated June 6, 2019 and received June 17, 2019.
2 Citations are made to Appellant’s informal reply
brief dated June 18, 2019 and received June 21, 2019.
GAITER v. HHS 5
appealable decision, Ms. Gaiter failed to move for review
within thirty days of its issuance. Id. at 11.
The government also replies to Ms. Gaiter’s arguments
on the merits. The government argues that the Special
Master correctly determined that Ms. Gaiter’s 2002 claim
is barred by the statute of limitations because the circum-
stances of this case do not warrant the extraordinary relief
of equitable tolling. Appellee’s Br. 12 (citing Krenik v. Sec’y
of the Dep’t of Health & Human Servs., No 03-2755V,
2014
WL 4387219 (Fed. Cl. Spec. Mstr. July 25, 2014)). The gov-
ernment further states that the evidence Ms. Gaiter pre-
sented fails to demonstrate a causal relationship, as
required by the statute, between MMR vaccine and autism.
Appellee’s Br. 13–14. The government explains that the
relationship between MMR vaccine and autism has been
extensively litigated and rejected in thousands of Vaccine
Act cases. Appellee’s Br. 13 n.6 (citing Snyder v. Sec’y of
the Dep’t of Health & Human Servs., No. 01-162V,
2009 WL
332044, at *4 n.12 (Fed. Cl. Spec. Mstr. Feb. 12, 2009),
aff’d,
88 Fed. Cl. 706 (2009); see also
id. (citing Cedillo v.
Sec’y of Health & Human Servs., No. 98-916V,
2009 WL
331968 (Fed. Cl. Spec. Mstr. Feb. 12, 2009); Hazelhurst v.
Sec’y of the Dep’t of Health & Human Servs., No. 03-654V,
2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d,
88 Fed. Cl. 473 (2009), aff’d,
604 F.3d 1343 (Fed. Cir.
2010)). Finally, the government argues that Ms. Gaiter
failed to produce sufficient medical records to corroborate
a vaccine-induced aggravation of D.S.G.’s autism related to
the 2014 claim. Appellee’s Br. 14; see also Appellee’s Br.
84–86.
III
We review de novo a decision by the Claims Court
granting a motion to dismiss. Frankel v. United States,
842
F.3d 1246, 1249 (Fed. Cir. 2016); Widdoss v. Sec’y of the
Dep’t of Health & Human Servs.,
989 F.2d 1170, 1174
(Fed.Cir.1993). The Vaccine Act created the National
6 GAITER v. HHS
Vaccine Injury Compensation Program through which
claimants could seek compensation for vaccine-related in-
juries. When Congress passed the Vaccine Act, it estab-
lished a statutory scheme to govern the procedure for cases
brought under the Act. These statutes require specific pro-
cedural milestones to occur within set timelines.
This scheme requires that, after a petition is filed, the
case be assigned to a special master for informal adjudica-
tion of the petition. See 42 U.S.C. § 300aa-12(d)(3). The
special master’s decision may be reviewed by the Claims
Court, but only if a party has filed a motion or notice re-
questing review of that decision. Id. at § 300aa-12(e)(1).
Such a request must be filed with the clerk of the Claims
Court within thirty days of the decision. Id.
If a request is made within thirty days, the Claims
Court may review the special master’s decision and reach
its own decision. Id. at § 300aa-12(e)(2). If, however, a re-
quest for review of the special master is not made within
thirty days, the clerk of the Claims Court will enter judg-
ment in accordance with the special master’s decision. Id.
at § 300aa-12(e)(3).
While this court has previously determined that the
thirty-day time period in which to file a motion for review
of the special master’s decision is jurisdictional, Widdoss,
989 F.2d at 1177 (“[T]he 30-day time period in which to file
a motion for review under section 300aa-12(e)(1) is juris-
dictional.”), the Supreme Court has more recently “stressed
the distinction between jurisdictional prescriptions and
nonjurisdictional claim-processing rules,” Fort Bend Cty,
TX v. Davis,
139 S. Ct. 1843, 1849 (2019). In Fort Bend,
the Court held that “Title VII’s charge-filing requirement
is not of jurisdictional cast,” but rather is a nonjurisdic-
tional claim-processing rule.
Id. at 1850; see also
id. at
1849–50 (collecting examples of other such claim-pro-
cessing rules, including Title VII’s time limit for filing a
charge with the Equal Employee Opportunity
GAITER v. HHS 7
Commission).
We need not decide, however, whether § 300aa-
12(e)(1)–(2) is a jurisdictional prescription because, as ex-
plained below, we would affirm the Claims Court’s dismis-
sal regardless. As the government contends, this record
does not provide us a basis to review or remand this case.
The central claim in Ms. Gaiter’s case is the 2002 claim and
that claim is barred by the statute of limitations. 42 U.S.C.
§ 300aa-16(a)(2); Gaiter, No. 17-1040V,
2018 WL 3030961
at *2–3; see also Appellee’s Br. 38–39, 44–48; Gaiter, 142
Fed. Cl. at 677 n.6.
With respect to the 2014 claim, Ms. Gaiter has failed to
produce sufficient medical records or other evidence to sup-
port her claim despite multiple requests from the Special
Master to do so. Appellee’s Br. 49; see also id. at 29–30,
84–85; Reply Br. Letter to the Special Master, *1 (dated
January 30, 2018); Gaiter, 142 Fed. Cl. at 677 n.6. The rec-
ord shows that throughout her case, the Special Master
and Claims Court instructed Ms. Gaiter on the evidence
that was required to support her case, and that the Special
Master afforded Ms. Gaiter multiple opportunities to pro-
duce such evidence. Thus, while we agree that leniency
should be extended to Ms. Gaiter as a pro se litigant, par-
ticularly where her request for review was filed too early,
we do not find a basis for setting aside the judgment of the
Claims Court on this record.
For the foregoing reasons, we affirm the Claims Court’s
judgment dismissing the case.
AFFIRMED
COSTS
The parties shall bear their own costs.
