Baker v. Secretary of Health & Human Services

ON MOTION

CLEVENGER, Circuit Judge.

ORDER

The Secretary of Health and Human Services moves to dismiss Jonathan Baker’s appeal of the decision of a Special Master in Baker v. Secretary of Health and Human Services, No. 99-653V (Sept. 26, 2003). Baker has not responded to the motion to dismiss but moves for an extension of time to file his brief.

Baker filed a petition under the National Childhood Vaccine Injury Act in the United States Court of Federal Claims. A Special Master issued an order dismissing with prejudice Baker’s petition. After the 30-day period prescribed for filing a motion for review in the Court of Federal Claims passed, the clerk of the Court of Federal Claims entered judgment on November 10, 2003. On December 29, 2003, Baker filed a notice of appeal seeking review of the special master’s decision.

The Secretary states that the Vaccine Act requires that a party aggrieved by a decision of a special master file a motion for review of that decision by a judge of the United States Court of Federal Claims within 30 days of the special master’s decision.^* The Secretary argues that a party may not file an appeal in this court without first obtaining such review in the Court of Federal Claims. We agree. Pursuant to our decision in Grimes v. Secretary of Health and Human Servs., 988 F.2d 1196, 1198 (Fed.Cir.1993), the filing and resolution of a timely motion for review with the Court of Federal Claims is a prerequisite to appellate review in this court. Because Baker did not file a timely motion for review in the Court of Federal Claims, this court lacks jurisdiction to review his case.

Accordingly,

IT IS ORDERED THAT:

(1) The Secretary’s motion to dismiss is granted.

(2) Baker’s motion for an extension of time is moot.

(3) Each side shall bear its own costs.

* The Secretary indicates that after filing a notice of appeal to this court, Baker filed a motion for review of the special master's decision in the trial court. However, the Court of Federal Claims dismissed that motion for review as untimely. Baker v. Secretary of Health and Human Servs., No. 99-653V (Jul. 7, 2004).