Price v. Secretary of Health & Human Services

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHANDRA D. PRICE, pro se representative of,
CHRISTOPHER T. WYNN,
Petitioner-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee.
______________________
2014-5041
______________________
Appeal from the United States Court of Federal
Claims in No. 1:08-vv-00093-TCW, Judge Thomas C.
Wheeler.
______________________
Decided: May 9, 2014
______________________
CHANDRA D. PRICE, of Cordova, Tennessee, pro se.
VORIS E. JOHNSON, JR., Assistant Director, Torts
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Assistant
Attorney General, RUPA BHATTACHARYYA, Director, and
VINCENT J. MATANOSKI, Deputy Director.
2 PRICE v. HHS
______________________
Before WALLACH, MAYER, and CHEN, Circuit Judges.
PER CURIAM.
Chandra D. Price, pro se representative of her son,
Christopher T. Wynn (“Christopher”), appeals the decision
of the United States Court of Federal Claims denying her
motion for review as time-barred. For the reasons set
forth below, this court affirms.
BACKGROUND
On February 15, 2008, Ms. Price filed a petition under
the Vaccine Act, 42 U.S.C. §§ 300aa-10 et seq., on behalf
of her minor son Christopher alleging that his autism, or
Autism Spectrum Disorder (“ASD”), was caused by vac-
cines he had received. Pursuant to statute, a Special
Master was assigned to this case. In April 2009, Ms.
Price filed the records required by § 300aa-11(c)(2) of the
Vaccine Act.
According to the records, Christopher was born on
June 26, 1991, and was diagnosed with ASD on June 29,
1994. The records also indicate that his ASD began to
manifest in or around June 1993, at which time Christo-
pher reportedly began to exhibit “communication prob-
lems and engage in self stimulating behaviors.” Resp’t’s
App. 24 (citation omitted).
On May 18, 2009, the Secretary of the Department of
Health and Human Services (“the Secretary”) filed a
Motion to Dismiss, on the ground that a petition under
the Vaccine Act must be filed no more than thirty-six
months after the first manifestation or symptom of the
onset of the injury. Because Christopher’s ASD had
occurred no later than his diagnosis on June 29, 1994, the
Secretary argued Ms. Price was barred by the Vaccine
Act’s statute of limitations. On June 8, 2009, Ms. Price
filed a Response to the Motion to Dismiss. On September
PRICE v. HHS 3
21, 2010, the Special Master ordered Ms. Price to inform
the court whether she wanted to pursue her claim or
dismiss the petition. On October 18, 2010, she informed
the Special Master she would proceed with her claim.
On March 1, 2011, the court ordered Ms. Price to
submit her theory of how the vaccines had caused Chris-
topher’s ASD. She responded that she believed the ASD
was caused by the vaccinations “being given in back to
back increments, and by mercury toxicity.” Id. (internal
quotation marks and citation omitted).
Attorney Richard Gage entered his appearance as
counsel for Ms. Price on July 1, 2011. On December 22,
2011, the Special Master again ordered Ms. Price to
advise the court whether she wished to pursue her claim.
On June 1, 2012, Mr. Gage filed a Motion for Decision
Dismissing Petition and on the same day, a decision
denying entitlement issued. On June 6, 2012, the parties
entered a joint notice not to seek review of the decision,
and judgment was therefore entered on June 14, 2012.
Ms. Price filed an election rejecting the judgment on
June 15, 2012. On April 22, 2013, Ms. Price, acting pro
se, filed documents that the Special Master construed as a
motion to reopen the case. Ms. Price explained that Mr.
Gage had “misunderstood when Christopher’s last vaccine
had been administered, which caused him to erroneously
conclude that the claim had been filed outside of the
Vaccine Act’s statute of limitations.” Id. at 25 (citation
omitted). On May 17, 2013, the Secretary filed a response
to Ms. Price’s motion to reopen her case, and on June 21,
2013, Ms. Price filed another document replying to the
Secretary’s filing. On October 1, 2013, the Special Master
issued an order denying Ms. Price’s motion to reopen,
finding that she “had not shown adequate reason to
reopen the case.” Id. at 26. Specifically, the Special
Master determined Ms. Price had failed to satisfy the
4 PRICE v. HHS
legal requirements for setting aside a judgment under
Rule 60(b) of the Rules of the Court of Federal Claims.
On November 5, 2013, thirty-five days after the Spe-
cial Master’s decision not to set aside judgment, Ms. Price
sent a letter (dated October 27, 2013) to the Court of
Federal Claims that was docketed as a motion for review
under statute. On December 11, 2013, the Court of
Federal Claims denied Ms. Price’s motion for review for
lack of jurisdiction, determining her motion was untimely.
Ms. Price appealed to this court on January 10, 2014,
and this court has jurisdiction under 42 U.S.C. § 300aa-
12(f) (2012).
DISCUSSION
Ms. Price challenges the merits of the Special Mas-
ter’s decision not to set aside judgment under Rule 60(b).
She contends the Special Master “used [the] incorrect date
on the date of [the] vaccine shot” for Christopher and that
her filing under the Vaccine Act was within the three-year
time limit. Pet’r’s Br. 1. However, this court cannot
reach the merits of the Special Master’s decision, because
the Court of Federal Claims denied Ms. Price’s motion for
review for lack of jurisdiction. See Grimes v. Sec’y of
Health & Human Servs., 988 F.2d 1196, 1199 (Fed. Cir
1993) (failure to seek review in the Court of Federal
Claims within the statutory time period prevents review
by this court). Therefore, the decision on appeal is the
Court of Federal Claims’ decision denying Ms. Price’s
motion to review. “Review of whether the Claims Court
had jurisdiction to hear the motion to review the [S]pecial
[M]aster’s decision is de novo.” Widdoss v. Sec’y of Health
& Human Servs., 989 F.2d 1170, 1174 (Fed. Cir. 1993).
As the Court of Federal Claims noted, “[t]he time pe-
riod in which to file a motion for review of a [S]pecial
[M]aster’s decision is jurisdictional.” Resp’t’s App. 8
(citing Widdoss, 989 F.2d at 1177). Because of this juris-
PRICE v. HHS 5
dictional nature, the Court of Federal Claims has found
review untimely even when a short time period, such as
one day, has passed. See, e.g., Mahaffey v. Sec’y of Health
& Human Servs., 368 F.3d 1378, 1380 (Fed. Cir. 2004)
(affirming the Court of Federal Claims’ finding that the
petitioner’s motion for review was untimely because it
was filed two days after the thirty-day deadline); Decker
v. Sec’y of Health & Human Servs. 51 Fed. Cl. 288, 289
(2001) (finding the motion untimely because the motion
was filed one day after the deadline). Ms. Price’s motion
for review was filed five days after this jurisdictional
deadline. The Court of Federal Claims properly held it
lacked jurisdiction and denied Ms. Price’s motion for
review.
To the extent subsequent Supreme Court and this
court’s en banc cases have cast into doubt the jurisdic-
tional nature of the deadline to file a motion for review
with the Court of Federal Claims, the Court of Federal
Claims did not abuse its discretion in finding there were
no extraordinary circumstances to justify equitable toll-
ing. 1 See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)
(“Generally, a litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraor-
dinary circumstance stood in his way.”).
The Court of Federal Claims first issued a Show
Cause Order so Ms. Price could explain why she did not
file her motion to review within the thirty-day time peri-
od. Explaining that “pro se plaintiffs receive more lati-
1 See, e.g., Henderson v. Shinseki, 131 S. Ct. 1197
(2011); Cloer v. Sec’y of Health & Human Servs., 654 F.3d
1332 (Fed. Cir. 2011) (en banc). Ms. Price does not chal-
lenge Widdoss and other cases holding that the deadline
to seek review of the Special Master’s decision is jurisdic-
tional, so this court does not address the issue.
6 PRICE v. HHS
tude in their pleadings and are not held to the rigid
standards and formalities imposed upon parties repre-
sented by counsel,” Resp’t’s App. 10, the court ordered Ms.
Price to “attach as exhibits any evidence such as receipts
or affidavits that explain why the five-day delay was
caused by extraordinary circumstances out of her control,”
id. at 11.
On December 3, 2013, Ms. Price responded to the
Show Cause Order explaining she had spoken with the
Clerk’s Office of the Court of Federal Claims who had told
her the motion was due on November 2, 2013. The court
found this information unpersuasive, especially since
November 2, 2013, was a Saturday, a day when the
Clerk’s Office is closed. Moreover, the court correctly
reasoned that, had there been misinformation given by
the Clerk’s Office, and the letter arrived over the week-
end, it would have reached the Clerk’s Office on Monday,
November 4, not Tuesday, November 5. Furthermore,
though Ms. Price maintained she sent the appeal by
express mail and it arrived on November 2, 2013, she
failed to include any evidence such as a receipt or track-
ing number to verify her assertion.
The Court of Federal Claims also reasonably noted
that failure to apply equitable tolling would not create
unfair results for Ms. Price. The court determined that “a
review of the record suggests that Ms. Price is highly
unlikely to succeed on the merits” because, as the Special
Master determined, Ms. Price filed her claim outside of
the statute of limitations period.” Id. at 9. As noted
above, Christopher was diagnosed with ASD on June 29,
1994, and Ms. Price did not file a claim until February 15,
2008. Under the Vaccine Act’s limitations period, Ms.
Price was required to file her claim within thirty-six
months, or by June 29, 1997. Though under this court’s
en banc decision in Cloer v. Sec’y of Health & Human
Servs., the thirty-six month limitation period is subject to
equitable tolling, there is no indication that equitable
PRICE v. HHS 7
tolling would apply to Ms. Price’s delay of over ten years
in filing her Vaccine Act Petition. See 654 F.3d 1322,
1340 (Fed. Cir. 2011) (en banc) (“We asked if Brice should
be overruled to permit equitable tolling of 42 U.S.C. §
300aa–16(a)(2). We now answer that question in the
affirmative.”). Thus, the Court of Federal Claims correct-
ly determined that “even if the Court were to grant Ms.
Price’s motion for review, her claim would not succeed.”
Resp’t’s App. 9.
CONCLUSION
For the reasons set forth above, the denial of the mo-
tion for review is
AFFIRMED