Case: 23-1072 Document: 32 Page: 1 Filed: 12/06/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BRUCE A. LING, JR.,
Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2023-1072
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-vv-00061-EHM, Judge Edward H. Meyers.
______________________
Decided: December 6, 2023
______________________
BRUCE A. LING, JR., Tallahassee, FL, pro se.
EMILIE WILLIAMS, Torts Branch, Civil Division, United
States Department of Justice, Washington, DC, for re-
spondent-appellee. Also represented by BRIAN M.
BOYNTON, C. SALVATORE D’ALESSIO, HEATHER LYNN
PEARLMAN.
______________________
Before LOURIE, DYK, and TARANTO, Circuit Judges.
Case: 23-1072 Document: 32 Page: 2 Filed: 12/06/2023
2 LING v. HHS
PER CURIAM.
Bruce A. Ling, Jr. once again seeks compensation un-
der the National Vaccine Injury Compensation Program,
42 U.S.C. § 300aa-10 to -34 (“Vaccine Act”), based on his
allegations that a seasonal influenza vaccination he re-
ceived in November 2011 caused him to develop Guillain-
Barré Syndrome (“GBS”). The special master denied his
claim, finding that Ling did not present sufficient evidence
to substantiate his allegation that he suffered from GBS.
Ling v. Sec’y of Health & Hum. Servs., No. 20-61V,
2021 WL 3913935, at *4 (Fed. Cl. Spec. Mstr. Aug. 17,
2021) (“Decision”). The United States Court of Federal
Claims (“Claims Court”) dismissed Ling’s untimely motion
for review but concluded that, even if the motion had been
timely, the special master’s decision was not arbitrary or
capricious. Ling v. Sec’y of Health & Hum. Servs., No. 20-
61V (Fed. Cl. Mar. 3, 2022), R.A. 6–12. 1 Thereafter, Ling
filed two motions for reconsideration, which the Claims
Court denied. Ling then filed a petition for review in this
court.
For the following reasons, we dismiss Ling’s appeal.
BACKGROUND
Ling has filed three pro se petitions under the Vaccine
Act, each alleging injuries from the same November 2011
flu vaccination. His first petition was denied on the merits
after he could not substantiate his alleged, unspecified in-
jury. Ling v. Sec’y of Health & Hum. Servs., No. 14-1017,
2017 WL 3814649, at *4 (Fed. Cl. July 21, 2017). His sec-
ond petition was dismissed because he had a civil suit
pending in the United States District Court for the North-
ern District of Florida at the time his petition was filed.
Ling v. Sec’y of Health & Hum. Servs.,
145 Fed. Cl. 778,
1 “R.A.” refers to the appendix filed with Respond-
ent-Appellee’s brief.
Case: 23-1072 Document: 32 Page: 3 Filed: 12/06/2023
LING v. HHS 3
783–84 (2019); see Flowers v. Sec’y of Dep’t of Health &
Hum. Servs.,
49 F.3d 1558, 1561 (Fed. Cir. 1995) (holding
that § 300aa-11(a)(5)(B) “prohibit[s] the filing of any Vac-
cine Act petition in which the petitioner has a co-pending
civil action, irrespective of the date of that co-pendency”).
Ling now seeks compensation for a third time, alleging that
a 2019 GBS diagnosis by his physician substantiates his
claim for relief. R.A. 23, 31.
On August 17, 2021, the special master denied Ling’s
claim, finding that Ling had not produced “persuasive evi-
dence” of a GBS diagnosis. Decision at *4. A copy of the
decision was served on Ling via U.S. Mail. R.A. 8. On Sep-
tember 1, 2021, the Claims Court published the special
master’s decision on its website, and a copy of that pub-
lished decision was again served on Ling via U.S. Mail. Id.
at 3, 8. Judgment was entered against Ling on September
17, 2021. Id. at 3, 8; see 42 U.S.C. §§ 300aa-12(e)(1), (3) (“In
the absence of a motion [for review of] the special master’s
decision . . . the clerk of the [Claims Court] shall immedi-
ately enter judgment in accordance with the special mas-
ter’s decision.”); see also Vaccine Rule 11(a).
On October 12, 2021, only after judgment had been en-
tered, did Ling file a motion for review of the special mas-
ter’s decision. R.A. 4, 8. He alleged, inter alia, that he
never received the mailed copy of the special master’s Au-
gust 17, 2021 decision, and that the delay prejudiced him
in preparing his motion and violated his right to due pro-
cess. See id. at 72–73, 77–80. As for the merits, he main-
tained that the evidence he submitted was sufficient to
support a GBS diagnosis. Id. at 74–77.
On March 3, 2022, the Claims Court dismissed Ling’s
motion, holding that it was untimely because, even if Ling
had not received the mailed copy of the August 17, 2021
decision, he had received the copy of the published, Sep-
tember 1, 2021 decision. Id. at 10. This meant that Ling
had at least 19 days to move for review upon receiving a
Case: 23-1072 Document: 32 Page: 4 Filed: 12/06/2023
4 LING v. HHS
copy of the decision, which did not rise to the level of a due
process violation. Id.; see Hervey v. Sec’y of Health & Hum.
Servs.,
88 F.3d 1001, 1003 (Fed. Cir. 1996) (holding that a
shortened period of 20 days to file a motion for review did
not violate vaccine petitioner’s right to due process). Ac-
cordingly, the Claims Court determined that it lacked ju-
risdiction over Ling’s motion for review. R.A. 10 (citing
Widdoss v. Sec’y of Dep’t of Health & Hum. Servs.,
989 F.2d
1170, 1177 (Fed. Cir. 1993) (holding that the thirty-day
deadline to file a motion for review under § 300aa-12(e)(1)
is jurisdictional)). 2 Nevertheless, the Claims Court deter-
mined that, even if it had jurisdiction, the special master’s
decision was not arbitrary or capricious because there was
no evidence that Ling in fact had GBS. R.A. 11.
Thereafter, Ling filed two motions for reconsideration,
which were denied on April 12, 2022, and June 27, 2022,
respectively. Id. at 4. On August 15, 2022, Ling petitioned
for review in this court. Id. at 5.
2 As the Claims Court observed, since Widdoss, the
Supreme Court has emphasized “the distinction between
jurisdictional prescriptions and nonjurisdictional claim-
processing rules, which ‘seek to promote the orderly pro-
gress of litigation by requiring that the parties take certain
procedural steps at certain specified times.’” Fort Bend
County v. Davis,
139 S. Ct. 1843, 1849 (2019) (citation
omitted); see ECC Int’l Constructors, LLC v. Sec’y of Army,
79 F.4th 1364 (Fed. Cir. 2023). We have not resolved
whether or not that recent guidance affects our holding in
Widdoss. See Gaiter v. Sec’y of Health & Hum. Servs.,
784
F. App’x 759, 762–63 (Fed. Cir. 2019). But we need not
reach that issue here, where, as explained below, Ling’s pe-
tition for review in this court was also untimely.
Case: 23-1072 Document: 32 Page: 5 Filed: 12/06/2023
LING v. HHS 5
DISCUSSION
Section 300aa-12(f) of the Vaccine Act states that the
Secretary or any petitioner aggrieved by the findings or
conclusions of the Claims Court on a petition for compen-
sation may obtain review in this court “upon petition filed
within 60 days of the date of judgment.” 42 U.S.C. § 300aa-
12(f); see
28 U.S.C. § 1295(a)(3) (granting this court juris-
diction over “an appeal from a final decision” of the Claims
Court).
The Secretary argues that this appeal should be dis-
missed for lack of jurisdiction because Ling’s August 15,
2022 petition for review in this court was not filed within
60 days of the Claims Court’s March 3, 2022 order. Secre-
tary’s Br. at 5–6 (citing § 300aa-12(f)). We observed, how-
ever, that the Claims Court never entered a separate
judgment with respect to that order. See, e.g., Vaccine Rule
30 (providing that, upon the Claims Court judge’s decision
on a motion for review, the clerk “will enter judgment in
accordance with the decision”). We therefore requested
supplemental briefing from the parties to address:
(1) whether separate judgment was necessary to render the
Claims Court’s decision “final” and thereby appealable pur-
suant to
28 U.S.C. § 1295(a)(3); (2) whether Ling’s two mo-
tions for reconsideration of the March 3, 2022 order tolled
the deadline to petition for review in this court; and
(3) whether the 60-day time limit to file a “petition for re-
view” in this court under § 300aa-12(f) is a jurisdictional
rule or a nonjurisdictional rule subject to waiver, forfeiture,
and equitable considerations. ECF 23; see, e.g., Fort Bend
County,
139 S. Ct. at 1849.
I
Upon consideration of that supplemental briefing, we
first conclude that the Claims Court did not need to enter
separate judgment upon dismissing Ling’s motion on
March 3, 2022, to render its decision final. As a pro se liti-
gant, Ling’s pleadings must be construed liberally.
Case: 23-1072 Document: 32 Page: 6 Filed: 12/06/2023
6 LING v. HHS
Erickson v. Pardus,
551 U.S. 89, 94 (2007). Although titled
as a “motion for review,” we find the substance of Ling’s
October 12, 2021 motion best construed as one for post-
judgment reconsideration pursuant to Claims Court Rule
59. See Vaccine Rule 36. So construed, Ling’s motion, filed
within 28 days of the September 17, 2021 entry of judgment
was timely. See Claims Court Rule 59. Moreover, when
construed in this way, the Claims Court need not have en-
tered separate judgment, see Claims Court Rule 58, and the
60-day time limit for Ling to file a petition for review in this
court would have been tolled, running not from the entry
of judgment on September 17, 2021, but from the entry of
the Claims Court’s March 3, 2022 order disposing of the
motion. Fed. R. App. P. 4(a)(4).
But liberally construing Ling’s post-judgment motion
in this way, his petition for review in this court, filed on
August 15, 2022—more than five months after March 3,
2022—clearly did not meet the 60-day time limit of
§ 300aa-12(f). This conclusion is unaffected by Ling’s two
subsequent motions for reconsideration because those mo-
tions, each filed more than 28 days after the entry of judg-
ment, did not toll the time to appeal. Browder v. Dir., Dep’t
of Corr. of Ill.,
434 U.S. 257, 269 (1978) (noting that Fed. R.
App. P. 4(a)(4) requires “that a [Rule 59] motion be timely
if it is to toll the time for appeal”). Although we recognize
that Ling is not an attorney and that he is not fully ac-
quainted with court rules and appellate procedures, the
Supreme Court has instructed courts to enforce procedural
rules even against pro se litigants who may not be familiar
with them. See, e.g., McNeil v. United States,
508 U.S. 106,
113 (1993) (noting that the Supreme Court has “never sug-
gested that procedural rules in ordinary civil litigation
should be interpreted so as to excuse mistakes by those who
proceed without counsel”).
Accordingly, we conclude that Ling’s petition for review
in this court was untimely.
Case: 23-1072 Document: 32 Page: 7 Filed: 12/06/2023
LING v. HHS 7
II
Because the petition was untimely, the Secretary urges
us to dismiss this appeal for lack of jurisdiction. But as we
noted above, the Supreme Court has recently emphasized
the distinction between jurisdictional prescriptions and
nonjurisdictional claim-processing rules.
“A ‘jurisdictional’ prescription sets the bounds of the
‘court’s adjudicatory authority.’ By contrast, nonjurisdic-
tional rules govern how courts and litigants operate within
those bounds.” Santos-Zacaria v. Garland,
598 U.S. 411,
416 (2023) (internal citation omitted). While jurisdictional
rules are absolute and cannot be waived, nonjurisdictional
claim-processing rules, although mandatory, are subject to
equitable exceptions. See
id. That is, unlike jurisdictional
rules, the enforcement of a claim-processing rule may be
waived or forfeited where the party asserting it “waits too
long to raise the point.” Fort Bend County,
139 S. Ct. at
1849.
We need not decide for the purposes of this case
whether the time limit imposed by § 300aa-12(f) is a juris-
dictional prescription or a nonjurisdictional claim-pro-
cessing rule. We dismiss the appeal regardless because,
even if the rule is not jurisdictional, the Secretary has nei-
ther waived nor forfeited its enforcement. See Secretary’s
Br. at 5–6. And we see no other equitable considerations
which would warrant deviation from this rule. Accord-
ingly, we adhere to the 60-day time limit of § 300aa-12(f).
CONCLUSION
For these reasons, we conclude that, because Ling’s pe-
tition for review in this court was untimely filed under
§ 300aa-12(f), his appeal must be dismissed.
DISMISSED
COSTS
No costs.
