Shoop v. Secretary of Health and Human Services ( 2014 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 08-219V
Filed: November 19, 2014
********************************
JENNY C. SHOOP, parent of *
JACOB P. SHOOP, a minor, *
*
Petitioner, * Motion for Reconsideration;
v. * Motion for Relief from Judgment;
* Vaccine Rule 36; RCFC 59;
SECRETARY OF HEALTH * RCFC 60
AND HUMAN SERVICES, *
*
Respondent. *
*
********************************
Jenny C. Shoop, Devalan, WI, pro se petitioner.
Katherine C. Esposito,1 U.S. Department of Justice, Washington, DC, for respondent.
RULING DENYING PETITIONER’S MOTION FOR POST-JUDGMENT RELIEF2
Vowell, Chief Special Master:
On October 14, 2014, the court received a letter from petitioner asking that her
claim, dismissed in 2011 for failure to prosecute, be reconsidered. Petitioner discusses
the substance of her claim but neglects to indicate why she failed to respond to a series
of orders issued in the case from September 2010 through the end of 2011.
Petitioner’s letter is construed as a motion for reconsideration pursuant to Rule
59 of the Rules of the United States Court of Federal Claims [“RCFC”] and a motion for
relief from judgment pursuant to RCFC 60.3 Because the special master formerly
assigned to the case is no longer at the court, the case was reassigned to me on
October 27, 2014.
1
Ms. Esposito is attorney of record for respondent but no longer works for the Vaccine Litigation Section
of the Department of Justice. No new counsel for respondent has been designated.
2
Because this unpublished ruling contains a reasoned explanation for the action in this case, I intend to
post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act
of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). In accordance with Vaccine Rule
18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of
which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified
material fits within this definition, I will redact such material from public access.
3
Vaccine Rule 10(e) allows either party to file a motion for reconsideration prior to the entry of judgment
and is not applicable here.
For the reasons discussed below, petitioner’s motion is DENIED.
I. Relevant Procedural History.
On March 27, 2008, petitioner filed a “Short-Form Petition for Vaccine
Compensation”4 under the National Childhood Vaccine Injury Act5 [“Vaccine Act” or
“Act”] on behalf of her son, Jacob. It was included in the Omnibus Autism Proceeding
[“OAP”] and effectively stayed while general causation issues were litigated in the OAP
test cases.6
During this time, petitioner was ordered to file all required medical records and to
establish that her claim was timely filed. Order, issued Apr. 4, 2008, at 1-3, 7; see §
11(c)(2) (the required medical records); § 16 (the Vaccine Act’s statute of limitations).
Petitioner filed medical records and a statement regarding the onset of Jacob’s
symptoms on June 2, 2008. See Petitioner’s Exhibits [“Pet. Ex.”] 1-30 (Petitioner’s
onset statement is titled “Cover Page.”)
Approximately one month later, respondent filed a motion to dismiss, arguing the
petition was filed “over twelve years after the expiration of the statutorily prescribed
limitations period.” Respondent’s Motion to Dismiss at 1. Petitioner filed a response to
the motion to dismiss on December 4, 2008. No ruling was made on the motion to
dismiss, pending resolution of the test cases. Additionally, potentially dispositive cases
involving the application of the statute of limitations in autism cases were pending
before the Court of Federal Claims and the Federal Circuit.
After the statutory 240-day period for the issuance of a decision expired,
petitioner was asked if she wished to continue in the vaccine program.7 Petitioner
4
By electing to file a Short-Form Autism Petition for Vaccine Compensation, petitioners alleged that:
[a]s a direct result of one or more vaccinations covered under the National Vaccine Injury
Compensation Program, the vaccinee in question has developed a neurodevelopmental
disorder, consisting of an Autism Spectrum Disorder or a similar disorder. This disorder
was caused by a measles-mumps-rubella (MMR) vaccination; by the “thimerosal”
ingredient in certain Diphtheria-Tetanus-Pertussis (DTP), Diphtheria-Tetanus-acellular
Pertussis (DTaP), Hepatitis B, and Hemophilus Influenza Type B (HIB) vaccinations; or
by some combination of the two.
Autism General Order #1, filed July 3, 2002, Exhibit A, Master Autism Petition for Vaccine Compensation
at 2.
5
The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood
Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C.A. §§
300aa-10 et. seq. (2006). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act.
6
A detailed discussion of the OAP can be found at Dwyer v. Sec’y, HHS, No. 03-1202V, 2010 WL
892250, at *3 (Fed. Cl. Spec. Mstr. Mar. 12, 2010).
7
Under the Vaccine Act, a special master is instructed to issue a decision “as expeditiously as practicable
but not later than 240 days.” § 12(d)(3)(A)(ii). If a special master fails to issue a decision within 240 days,
2
indicated that she wished “to have [her] petition remain before the special master.”
Notice, filed Jan. 8, 2009.
The last decisions were issued in the OAP “test cases” on March 12, 2010.8 In
light of the conclusion reached in all test cases, that there was insufficient evidence that
vaccines caused autism, petitioner was ordered to inform the court whether she wished
to proceed with her claim. Order, issued Sept. 22, 2010, at 2-3.9 Petitioner failed to
respond to the order.
On December 3, 2010, petitioner was ordered to inform the court whether she
wished to proceed with her claim or explain why her claim should not be dismissed for
failure to prosecute. See Show Cause Order #1 at 1. The order was sent to petitioner
at her address of record by certified mail and was returned as undeliverable on January
6, 2011.10
On February 16, 2011, petitioner was ordered to provide the court with a valid
address and telephone number or explain why her claim should not be dismissed for
failure to prosecute. See Show Cause Order #2 at 2. Copies of the September 22 and
December 3 orders were included as attachments, and the orders were sent by regular
mail to petitioner’s address of record and a similar address discovered after a search for
petitioner’s contact information was performed.11 Id. at 1. Again, petitioner failed to
respond.
the special master must notify the petitioner so the petitioner may withdraw the petition in accordance
with § 21(b) or choose to remain before the special master. § 12(g).
8
The Theory 1 cases are Cedillo v. Sec’y, HHS, No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec. Mstr.
Feb. 12, 2009), aff’d, 89 Fed. Cl. 158 (2009), aff’d, 617 F.3d 1328 (Fed. Cir. 2010); Hazlehurst v. Sec’y,
HHS, 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); Snyder v. Sec’y, HHS, No. 01-162V, 2009 WL 332044 (Fed. Cl.
Spec. Mstr. Feb. 12, 2009), aff’d, 88 Fed. Cl. 706 (2009). Petitioners in Snyder did not appeal the
decision of the U.S. Court of Federal Claims. The Theory 2 cases are Dwyer, 2010 WL 892250; King v.
Sec’y, HHS, No. 03-584V, 2010 WL 892296 (Fed. Cl. Spec. Mstr. Mar. 12, 2010); Mead v. Sec’y, HHS,
No. 03-215V, 2010 WL 892248 (Fed. Cl. Spec. Mstr. Mar. 12, 2010). The petitioners in each of the three
Theory 2 cases chose not to appeal.
9
Although the order required only that petitioner indicate her intent, it explained that, if continuing, a
second order would be issued requiring petitioner to provide a theory of causation, a medical expert’s
opinion, and other evidence supporting her claim.
10
A search on the U.S. postal service website using the order’s tracking number produced no results. A
call to the postal service confirmed that tracking information was no longer available as such information
is maintained for six months to a year. The envelope which was returned with the order appears to
indicate that the order was received by petitioner’s local post office on December 6, 2010 and delivery
was attempted on December 13 and 21, 2010.
11
The street address and city in both addresses were the same but the street number was different.
3
A fourth order was issued on June 16, 2011. Petitioner again was ordered to
provide the court with a valid address and telephone number or to show cause why her
claim should not be dismissed for failure to prosecute. Show Cause Order #3 at 2. This
order also was sent to the same two addresses as the February 16, 2011 order but was
sent by certified mail. Id. at 1-2. The order was not returned to the court but I am
unable to determine if it was delivered to petitioner.12 Petitioner again failed to respond.
The claim was dismissed due to a failure to prosecute on November 22, 2011.
Judgment entered on December 28, 2011.
On October 14, 2014, petitioner filed the instant motion. Discussing the facts of
the case and events which transpired, petitioner argues that the medical knowledge
now available supports her claim. Petitioner’s Motion [“Pet. Motion”] at 1. Citing her
financial circumstances and inability to procure Medicaid approval for a desired medical
treatment, she asks the court to award compensation. Id. at 2.
II. Legal Standards.
The Vaccine Rules, which are found at Appendix B to the RCFC, govern all
Vaccine Act proceedings. Vaccine Rule 1(a). If a matter is not specifically addressed
by the Vaccine Rules, the special master may apply the RCFC, so long as those rules
are not inconsistent with the Vaccine Rules and the purpose of the Vaccine Act.
Vaccine Rule 1(b)-(c).
Vaccine Rule 36 and RCFC 59 and 60 all address post-judgment relief. Vaccine
Rule 36(a) allows a party to file a motion for reconsideration pursuant to RCFC 59 or to
seek relief from judgment pursuant to RCFC 60. RCFC 59 and 60 are identical to Rules
59 and 60 of the Federal Rules of Civil Procedure. Thus, cases involving Rules 59 and
60 of the Federal Rules of Civil Procedure are informative in determining the meaning
and intent of RCFC 59 and 60.
In determining whether a judgment should be set aside or altered, “the need for
finality of judgments” must be balanced against “the importance of ensuring that litigants
have a full and fair opportunity to litigate” when determining whether to grant relief.
Kennedy v. Sec’y, HHS, 99 Fed. Cl. 535, 539 (2011) (citing United Student Aid Funds,
Inc. v. Espinosa, 559 U.S. 260, 276 (2010)); see also Bridgham by Libby v. Sec’y, HHS,
33 Fed. Cl. 101, 104 (1995) (discussing the “tension between the goals of ensuring that
the court’s judgment appropriately reflects the adjudication of the parties’ rights and of
providing the parties with certainty as to those rights”).
Rule 59 allows a judge or special master to reconsider all or some of the issues
in a case. RCFC 59(a)(1). The court may “open the judgment if one has been entered,
12
Like the December 3, 2010 order, the tracking information for this order is no longer available. See
supra note 9.
4
take additional testimony, amend findings of fact and conclusions of law or make new
ones, and direct the entry of a new judgment.” RCFC 59(a)(2). With the exception of a
motion based on “any fraud, wrong, or injustice . . . done to the United States” (RCFC
59(a)(1)(C)), a motion must be filed with 28 days of the date judgment entered. RCFC
59(b).
A motion for relief under RCFC 60(b)13 “seeks to set aside a final decision and it
is incumbent upon the motion-filer to demonstrate that he or she is entitled to that relief.”
Kennedy, 99 Fed. Cl. at 550. Relief from final judgment under RCFC 60 can be
obtained for the specific reasons listed in RCFC 60(b)(1)-(5) or the “catch-all” provision
at RCFC 60(b)(6). “A motion under RCFC 60(b) must be made within a reasonable
time-and for reasons (1), (2), and (3) no more than a year after the entry of judgment.”
RCFC 60(c)(1). A motion may be filed later than one year after judgment has entered if
filed for reasons (4) or (5) or the catch-all provision (6).
The catch-all provision allows a judgment to be vacated “whenever such action is
appropriate to accomplish justice.” Klapprott v. United States, 335 U.S. 601, 615
(1949). However, extraordinary circumstances must warrant such relief. See
Ackerman v. United States, 340 U.S. 193, 198 (1950) (denying relief after finding the
extraordinary circumstances in Klapprott did not exist). When determining if
extraordinary circumstances exist, one must consider the level of fault which can be
attributed to the individual seeking relief. “In a vast majority of cases finding that
extraordinary circumstances do exist so as to justify relief, the movant is completely
without fault . . . .” CNA Corp. v. United States, 83 Fed. Cl. 1, 8 (2008) (citing Moore’s
Federal Practice § 60.48[3][b] (3rd ed. 2008)).
In Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5th Cir. 1981), the court listed
eight factors important in determining whether relief under Rule 60(b) is warranted:
(1) [t]hat final judgments should not lightly be disturbed; (2) that the Rule
60(b) motion is not to be used as a substitute for appeal; (3) that the rule
should be liberally construed in order to achieve substantial justice; (4)
whether the motion was made within a reasonable time; (5) whether if the
judgment was a default or a dismissal in which there was no consideration
of the merits the interest in deciding cases on the merits outweighs, in the
particular case, the interest in the finality of judgments, and there is merit
in the movant's claim or defense; (6) whether if the judgment was
rendered after a trial on the merits the movant had a fair opportunity to
present his claim or defense; (7) whether there are intervening equities
that would make it inequitable to grant relief; and (8) any other factors
relevant to the justice of the judgment under attack.
Seven Elves, 635 F.2d at 402.
13
RCFC 60(a) allows the court to correct a mistake due to a clerical error, oversight, or omission and is
not applicable here.
5
Courts have weighed the merits of the underlying claim in determining whether
relief from judgment is appropriate. See, e.g., Curtis v. United States, 61 Fed. Cl. 511,
512 (2004) (“[A] litigant, as a precondition to relief under Rule 60(b), must give the trial
court reason to believe that vacating the judgment will not be an empty exercise.”)
(quoting Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v.
Superline Transp. Co., 953 F.2d 17, 20 (1st Cir. 1992)).
III. Evaluating Petitioner’s Motion.
Petitioner filed the instant motion almost three years after judgment entered, too
late to seek relief under RCFC 59 and RCFC 60(b)(1)-(3). Even if the motion had been
timely filed, the difficulties Jacob endured and petitioner’s inability to pay for desired
medical treatment are not a basis for granting relief. In nearly every Vaccine Act case,
the vaccinee has suffered an injury that has persisted over time.
A motion for relief under subsections (3), (4), and (5) may be filed more than one
year after judgment has entered, but petitioner does not claim any of the changed
circumstances regarding the judgment which are listed in subsections (4) or (5).14 Thus,
petitioner’s only available remedy for relief is the catch-all provision found at RCFC
60(b)(6).
A. Extraordinary Circumstances.
As discussed in Section II, the level of blame attributable to petitioner should be
considered when determining if the extraordinary circumstances required for relief under
RCFC 60(b)(6) exist. Here, petitioner’s claim was dismissed because she failed to
respond to a series of orders issued from late 2010 through 2011, but she has provided
no reason or justification for her lack of response. It appears that petitioner and Jacob
may be living with her mother since she asked that correspondence be sent to her at
her mother’s address. Pet. Motion, filed Oct. 14, 2014, at 2. However, she does not
indicate if or when she moved. Even if petitioner moved, it is her responsibility to
maintain her correct contact information with the court.15
The medical records and statements filed describe the difficult circumstances
petitioner and her mother face as they care for Jacob. However, these circumstances
existed when petitioner filed her claim and responded to every order issued by the court
from 2008 through 2009. Petitioner does not explain why she failed to respond to the
orders issued in 2010 and 2011.
14
For example, relief from judgment may be granted if the judgment is void, satisfied, or was “based on
an earlier judgment that has been reversed or vacated.” RCFC 60(b)(4)-(5).
15
In the Vaccine Rules, the terms used for the attorney of record apply to pro se petitioners as well.
Vaccine Rule 14(a)(2). The Rules require that the attorney of record “promptly file with the clerk and
serve on the court . . . a notice of any change in the attorney’s contact information.” Vaccine Rule
14(b)(2).
6
B. Merits of Petitioner’s Claim.
Even if petitioner could show extraordinary circumstances exist which would
warrant relief under RCFC 60(b)(6) (or any other provision of RCFC 60(b)), she cannot
prevail on the merits because it is clear her claim was untimely filed. Petitioner filed
Jacob’s medical records and several statements providing a summary of events
concerning the onset of Jacob’s condition. I have reviewed and considered the entire
record. The evidence does not support petitioner’s assertions that Jacob’s autism was
vaccine-caused or that he suffered an acute encephalopathy. Moreover, the record
establishes that the claim was filed approximately 12 years after the expiration of the
statute of limitations.
Petitioner indicates that when Jacob exhibited his first symptoms of autism,
“physicians, due to [a] lack of medical studies, were restricted in diagnosing vaccine
injury related autism.” Pet. Motion, filed Oct. 14, 2014, at 1. Even if that were a
sufficient reason to grant relief, when using the term “vaccine injury related autism,”
petitioner makes a significant and unsupported assertion. In filing a short-form petition,
petitioner alleged that Jacob’s condition was caused by the measles, mumps, and
rubella [“MMR”] vaccine, the “thimerosal” ingredient in the diptheria-tetanus-pertussis
[“DTP”] or haemophilus influenza type b [“Hib”] vaccines or a combination of the two.
See Autism General Order #1, issued July 3, 2002, Exhibit A, Master Autism Petition for
Vaccine Compensation at 2. Causation was not established regarding these theories
during the OAP and petitioner has provided no new evidence to support such claims.
Petitioner first raised the possibility of a Table Injury16 in her response to
respondent’s motion to dismiss. Petitioner’s Response, filed Dec. 4, 2008, at 2.
Claiming that Jacob’s symptoms met the definition of an acute encephalopathy, 17
16
A “Table” injury is an injury listed on the Vaccine Injury Table, 42 C.F.R. § 100.3, corresponding to the
vaccine received within the time frame specified. Petitioner is alleging Jacob suffered from an
encephalopathy. 42 C.F.R. § 100.3(a)II.B and III.B. For a vaccinee to have suffered a Table
encephalopathy, the Qualifications and Aids to Interpretation [“QAI”] section of the Vaccine Injury Table
requires that a vaccinee has suffered an acute encephalopathy and a chronic encephalopathy persisting
for more than 6 months. 42 C.F.R. § 100.3(b)(2).
17
The QAI to the Vaccine Injury Table are located at 42 C.F.R. § 100.3(b) and contain definitions for the
terms used in the Table. See Althen v. Sec’y, HHS, 58 Fed. Cl. 270, 280 (2005), aff’d, 418 F.3d 1274(Fed. Cir. 2005) (noting that the QAI should be used to interpret key terms found in the Table). An acute
encephalopathy is defined as “one that is sufficiently severe to require hospitalization (whether or not
hospitalization occurred).” 42 C.F.R. § 100.3(b)(2)(i). For a child younger than 18 months of age,
presenting without an associated seizure event, an acute encephalopathy is indicated “by a significantly
decreased level of consciousness . . . lasting for at least 24 hours.” 42 C.F.R. § 100.3(b)(2)(i)(A). A
significantly decreased level of consciousness is indicated by the presence of one of three clinical signs
for a period of at least 24 hours: “(1) Decreased or absent response to environment (responds, if at all,
only to loud voice or painful stimuli); (2) Decreased or absent eye contact (does not fix gaze upon family
members or other individuals); or (3) Inconsistent or absent responses to external stimuli (does not
recognize familiar people or things).” 42 C.F.R. § 100.3(b)(2)(i)(D). Sleepiness, irritability (fussiness),
high-pitched and unusual screaming, persistent inconsolable crying, and bulging fontanelle are not, alone,
or in combination, a demonstration of an acute encephalopathy. 42 C.F.R. § 100.3(b)(2)(i)(E).
7
petitioner alleged that he experienced a
change of conscience [sic] behavior; turning violent such as grabbing [a]
knife in a threatening motion toward grandmother, panic stricken running
around, screaming inconsolably, attacking[,] scratching, holding his ears
and later noticable [sic] swelling above ears (unsure how long after the
swelling above ears occurred [sic]), blood in stool, fever, feet peeling,
sudden unusual strength, peeling feet, rash.
Id. In her earlier statement regarding onset, petitioner claimed that Jacob screamed
inconsolably for days causing a hernia following his September 19, 1991 vaccinations
and had “a fever, cold like symptoms, rectal bleeding, feet peeling, and inconsolable
screaming” following his January 6, 1993 vaccinations. Petitioner’s Statement (labeled
Cover Page), filed June 2, 2008, at 1. In the instant motion, petitioner reported
[t]he following symptoms occured [sic] within ten days of the DPT, MMR,
and polio vaccinations: bizzare [sic] behavior, inconsolable screaming,
fever, peeling feet, diarrhea (I think) and later swelling above ears; in
which prompted a visit to his pediatrician and was given a shot of an anti-
biotic that made Jacob’s condition to escalate, especially high pitched
screaming.
Pet. Motion, filed Oct. 14, 2014, at 1.
The medical records indicate Jacob received his September 19, 1991
vaccinations at his two month well child visit. Pet. Ex. 3, p. 2. At that visit, it was noted
that he had “gas,” “problems drinking [from a] bottle,” and was “crying.” Id. He received
his first DTP vaccination, first polio [“OPV”] vaccination, and first Hib vaccination. Id.,
pp. 2, 8. He was not seen again by his pediatrician until his four month well child visit
when he was observed to be “doing well,” “alert,” and “vigorous.” Id., p. 2.
For the next 16 months, Jacob visited his pediatrician four more times for well
child visits. At these visits, he was assessed as a “well child” and described as “doing
well,” “alert,” and “vigorous.” Pet. Ex. 3, pp. 3-4. At his January 6, 1993 well child visit,
he was observed to be a “well child” who was “walking well.” Id., p. 4. He received his
MMR, DTP, OPV, and Hib vaccinations. Id., pp. 4, 8.
Jacob visited his pediatrician eight days later (on January 14, 1993) for peeling
skin and red feet but none of the other symptoms reported by petitioner were noted.
Pet. Ex. 3, p. 5. Jacob returned for a second sick visit on January 28, 1993 for a cold
and fever of up to 100° Fahrenheit. At that visit, his temperature was recorded as 98°.
He was diagnosed with an ear infection and an upper respiratory infection [“URI”]. Id.
There is no mention of screaming or fever as high as 104° as petitioner later claims.
Jacob’s next visit was his two year well child visit on August 17, 1993 when he was
assessed as a “well child” but concerns regarding his speech were noted. Id., p. 6.
8
More than one year later while giving Jacob’s history, his grandmother reported
that in addition to peeling feet, he experienced a temperature of 104° after his January
6, 1993 vaccination and would sometimes scream for a minute to hours at a time. Pet.
Ex. 4, p. 21. That record also indicates “there has been no seizure or loss of
consciousness.” Id. When Jacob’s grandmother reported these symptoms to Dr. Rami
Amit in September 1996, Dr. Rami Amit opined that “[t]here was no encephalopathic
state, according to the information that I received.” Pet. Ex. 6, p. 1.
The medical records filed do not support petitioner’s assertions. Even if
supported by the medical records, many of the symptoms petitioner lists are not
symptoms of an acute encephalopathy as defined in the QAI. Symptoms such as “high-
pitched and unusual screaming, persistent inconsolable crying, and a bulging
fontanelle” are specifically described as insufficient to show an acute encephalopathy.
42 C.F.R. § 100.3(b)(2)(i)(E). Thus, the record does not support a Table Injury.
Even if it did, Jacob’s claim still is untimely by almost 12 years. Viewing conflicts
in the record regarding onset of symptoms of the claimed injury in the light most
favorable to petitioner, Jacob displayed symptoms of speech delay in 1993.18 This
claim was filed on March 27, 2008. Thus, the petition was filed almost 12 years too late.
IV. Conclusion.
Petitioner has not established a basis for granting post-judgment relief. Although
courts have allowed such relief under the catch-all provision of RCFC 60(b), the lack of
fault by the moving party was an important factor in granting relief from judgment and
affording the party an opportunity to present his or her claim. See, e.g., Freeman v.
Sec’y, HHS, 35 Fed. Cl. 280 (1996).19 Here, petitioner has offered no explanation for
her failure to respond to the court’s orders. Furthermore, unlike the petitioners in
Freeman, petitioner filed medical records which do not support her assertions regarding
entitlement and show that the case was filed well after the expiration of the Vaccine
Act’s statute of limitations. Even if I granted petitioner’s motion it is unlikely that she
would prevail on the merits of her case. Thus, granting the motion would constitute the
empty exercise discussed in Teamsters, 953 F.2d at 20.
The motion for reconsideration and post-judgment relief is DENIED.
18
As the Federal Circuit noted in Carson, speech delay qualifies as “the first objectively recognizable
symptom of autism.” Carson ex rel. Carson v. Sec’y, HHS, 727 F.3d 1365, 1370 (Fed. Cir. 2013): see
also White v. Sec'y, HHS, No. 04-337V, 2011 WL 6176064, at *4-9 (Fed. Cl. Spec. Mstr. Nov. 22, 2011)
(describing symptoms of autism).
19
In Freeman, the petitioners believed they had hired an attorney to represent them in their claim. Id. at
281-82. They had paid the attorney $200, provided him with the documents he needed, and assumed he
had entered an appearance and was responding to orders on their behalf. Id. They alleged that they
checked with their attorney on several occasions and only learned their claim had been dismissed the
month before they filed their motion for post-judgment relief. Id. at 282. At the time their claim was
dismissed, no medical records or other supporting documents had been filed.
9
The clerk shall send one copy of this order to petitioner at her address of
record and another copy to petitioner at the addressed she provided:
Jenny Shoop
c/o Patricia Shoop
1385 Elkhorn Rd #305
Lake Geneva, WI 53147
IT IS SO ORDERED.
__________________
Denise K. Vowell
Chief Special Master
10