G.L.G. v. Hhs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
G.L.G., a minor, by his parents and natural guardi-
ans, ERNEST GRAVES AND CHERYL W. GRAVES,
Petitioners-Appellants,
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee.
______________________
2014-5063
______________________
Appeal from the United States Court of Federal
Claims in No. 1:09-vv-00080-FMA, Judge Francis M.
Allegra.
______________________
Decided: August 7, 2014
______________________
G.L.G., a minor, by his parents and natural guardi-
ans, ERNEST GRAVES and CHERYL W. GRAVES, of Yulee,
Florida, pro se.
RYAN D. PYLES, Trial Attorney, Torts Branch, Civil
Division, United States Department of Justice, of Wash-
ington, DC, for respondent-appellee. With him on the
brief were STUART F. DELERY, Assistant Attorney General,
2 G.L.G. v. HHS
RUPA BHATTACHARYYA, Director, VINCENT J. MATANOSKI,
Deputy Director, and GABRIELLE M. FIELDING, Assistant
Director.
______________________
Before PROST, Chief Judge, O’MALLEY, and HUGHES,
Circuit Judges.
O’MALLEY, Circuit Judge.
Petitioners Cheryl and Ernest Graves (“Graves”), 1 on
behalf of their son G.L.G., 2 appeal the Court of Federal
Claims’s dismissal of their Motion for Review of the
Special Master’s decision. Because Graves’s motion was
untimely, we affirm.
BACKGROUND
Graves sought compensation under the Vaccine Act,
42 U.S.C. §§ 300aa-10 et seq. (2012), on behalf of G.L.G.
Graves filed a Short-Form Autism Petition for Vaccine
Compensation on February 11, 2009, thus joining the
Omnibus Autism Proceeding and adopting the Master
Autism Petition for Vaccine Compensation.
On April 21, 2009, Graves filed medical records and a
second pro se petition. After the Omnibus Autism Pro-
1 While both Ernest and Cheryl Graves are named
as petitioners, only Cheryl Graves has participated in the
proceedings or signed filings before the Court of Federal
Claims or this court. Thus, we henceforth refer to only
Ms. Graves as the petitioner.
2 Graves requested redaction of her son’s name af-
ter the Special Master released his decision. Graves ex rel
G.L.G. v. Sec’y of Health & Human Servs., No. 09-0080V,
2013 WL 6503642, at *1 n.1 (Fed. Cl. Nov. 19, 2013).
Pursuant to her wishes, we will continue to refer to her
son as G.L.G. in this opinion.
G.L.G. v. HHS 3
ceeding test cases concluded, Graves reasserted her desire
to continue with her claim in an October 14, 2010 state-
ment. In response, the Special Master required Graves to
describe how a vaccine led to G.L.G.’s injuries. Graves
explained that a combination of vaccines administered to
G.L.G. on October 14, 2004, while G.L.G. was sick with
cold symptoms, caused G.L.G.’s autism and epilepsy
symptoms. On September 25, 2012, 3 the Special Master
determined that Graves had not sufficiently demonstrated
that she timely filed her petition within 36 months of the
date of occurrence of “the first symptom or manifestation
of onset or the significant aggravation” of G.L.G.’s autism,
as required by 42 U.S.C. § 300aa-16(a)(2). The Special
Master issued an order to show cause why he should not
dismiss the petition as untimely filed. Graves argued
that earlier statements she made regarding the first
indications of G.L.G.’s speech delay were incorrect, and
that the speech delay did not begin until later than she
originally asserted. Graves also argued that G.L.G.’s
pediatrician required her to seek Medicaid coverage to
which she was not entitled, which she asserts was a form
of duress sufficient for equitable tolling.
The Special Master issued an opinion on October 28,
2013, denying Graves’s claims as filed after expiration of
the Vaccine Act’s statute of limitations. Graves ex rel
G.L.G., 2013 WL 6503642, at *4–6. The Special Master
found that Graves’s earlier statements, claiming that she
observed G.L.G.’s speech regression between 24–30
months, were more reliable than her August 2013 state-
ments that she did not observe any speech regression
until G.L.G. was almost 3 years old. Id. In combination
with evidence from G.L.G.’s medical records, the Special
Master found sufficient evidence that “G.L.G. displayed
3 At this point, Graves’s case had been reassigned
to a new Special Master.
4 G.L.G. v. HHS
symptoms of autism more than 36 months before this
claim was filed.” Id. at *7. The Special Master also found
no basis to apply equitable tolling. Id. The decision
reissued on November 19, 2013 to account for the redac-
tion of G.L.G.’s name and exact birthdate.
Graves mailed a “Motion to Appeal Decision of Un-
timely Filed Vaccine Claim” (“Motion for Review”) to the
Court of Federal Claims on November 27, 2013. The
Court of Federal Claims, however, did not receive the
motion until December 2, 2013. On December 2, the
Court of Federal Claims issued a one sentence judgment
adopting the Special Master’s dismissal of Graves’s peti-
tion as untimely filed under the Vaccine Act’s statute of
limitations.
The Court of Federal Claims then addressed the ar-
guments Graves made in her Motion for Review. Graves
claimed that the Special Master did not give appropriate
weight to her statements that G.L.G. began to regress
between 30–36 months, and that her pediatrician’s con-
tinued requirement that she seek Medicaid should be a
basis for equitable tolling. In a January 28, 2014 order,
the Court of Federal Claims dismissed Graves’s Motion
for Review as untimely filed under 42 U.S.C. § 300aa-
12(e)(1) and Rule 23 of the Vaccine Rules of the United
States Court of Federal Claims (“Vaccine Rules”). The
Court of Federal Claims stated that Graves had 30 days
to file the Motion for Review after the Special Master’s
decision issued. The Court of Federal Claims identified
November 28, 2013 as the day the deadline expired.
Because the Court of Federal Claims did not receive the
Motion for Review until December 2, and it is the day the
clerk receives the motion that controls, the Court of
Federal Claims held that Graves’s Motion for Review, like
her original petition, was untimely.
In response to the January 28, 2014 order, Graves
filed a “Motion to Appeal Decision on Motion for Review”
G.L.G. v. HHS 5
on February 18, 2014. Graves argued that, because
November 28, 2013 was Thanksgiving Day, and thus a
legal holiday, receipt on December 2 was timely as De-
cember 2 was the first day the Court of Federal Claims
was open after the Thanksgiving holiday. The Court of
Federal Claims issued a new order on February 24, 2014.
The Court of Federal Claims first held that because its
rules did not provide for a “motion for reconsideration,” it
would treat Graves’s February 18 filing as a Rule 60(b)
motion for relief from judgment. Next, the Court of
Federal Claims identified an error in its January 28, 2014
order—Graves’s 30-day period to file the Motion for
Review with the Court of Federal Claims expired on
November 27, 2013, not November 28 as identified in the
order. Thus, because Graves’s Motion for Review was not
received on November 27, a day when the Clerk’s office
was open, the Court of Federal Claims again found the
Motion for Review to be untimely.
Graves then filed a “Notice to Appeal” to our court on
March 19, 2014. In her Notice, Graves claimed that both
she and G.L.G. were “very ill” during the week of Thanks-
giving 2013, and attached hospital records showing that
G.L.G. received treatment for a seizure disorder on No-
vember 24, and Graves received treatment for acute
bronchitis on November 29.
We have jurisdiction under 42 U.S.C. § 300aa-12(f).
ANALYSIS
On appeal, Graves challenges the Court of Federal
Claims’s determination that her December 2, 2013 Motion
for Review was untimely, and also the underlying merits
of the Special Master’s decision. As to the timeliness of
her appeal, Graves argues that the illnesses which she
and G.L.G. suffered on or about the filing deadline should
excuse her late filing. The government contends, first,
that Graves’s March 19, 2014 “Notice to Appeal” to this
court was itself untimely, and, second, that the Court of
6 G.L.G. v. HHS
Federal Claims did not err in holding that the December 2
Motion for Review was also untimely filed.
The Court of Federal Claims dismissed Graves’s Mo-
tion for Review for lack of jurisdiction. Therefore, we do
not reach the merits of the underlying Special Master’s
decision, including its decision on Graves’s claim that her
obligation to timely file a petition should have been equi-
tably tolled. See Mahaffey v. Sec’y of Health & Human
Servs., 368 F.3d 1378, 1382–83 (Fed. Cir. 2004); Grimes v.
Sec’y of Health & Human Servs., 988 F.2d 1196, 1199
(Fed. Cir. 1993). We only consider whether we have
jurisdiction to consider this appeal and, if so, review the
Court of Federal Claim’s dismissal of Graves’s Motion for
Review as untimely filed.
I
The government alleges that we should dismiss this
appeal for lack of jurisdiction because Graves failed to file
a timely Notice of Appeal with this court. The Vaccine
Act provides that:
The findings of fact and conclusions of law of the
United States Court of Federal Claims on a peti-
tion shall be final determinations of the matters
involved, except that the Secretary or any peti-
tioner aggrieved by the findings or conclusions of
the court may obtain review of the judgment of
the court in the United States court of appeals for
the Federal Circuit upon petition filed within 60
days of the date of the judgment with such court
of appeals within 60 days of the date of entry of
the United States Claims Court’s judgment with
such court of appeals.
42 U.S.C. § 300aa-12(f) (emphasis added). This filing
period is jurisdictional, and therefore mandatory. Bowles
v. Russell, 551 U.S. 205, 213–14 (2007) (holding that the
statutory limit on the time to file a notice of appeal from a
G.L.G. v. HHS 7
district court to a court of appeal is jurisdictional); cf.
Henderson v. Shinseki, — U.S. —, 131 S. Ct. 1197, 1204–
05 (2011) (holding that the 120-day time limit to appeal
from a decision of the Court of Appeals for Veterans
Claims to the Federal Circuit is jurisdictional).
The Court of Federal Claims entered judgment on
December 2, 2013. Graves filed her Notice of Appeal on
March 19, 2014. Graves did not file a Notice of Appeal
within 60 days of the date on which the Court of Federal
Claims entered final judgment. Graves did, however, file
a “Motion to Appeal Decision on Motion for Review” on
February 18, 2014, which the Court of Federal Claims
construed as a Rule 60(b) motion for relief from judgment.
The Court of Federal Claims issued an order in response
to this February 18 motion on February 24. Graves filed
a Notice of Appeal within 60 days of that February 24
order.
The fact that Graves filed a Rule 60(b) motion does
not alter the 60-day timeline to appeal entry of a final
judgment. See, e.g., Brown v. United States, 80 F. App’x
676, 677–78 (Fed. Cir. 2003); Jacobs v. United States, 31
F. App’x 669, 669 (Fed. Cir. 2002). Thus, Graves’s appeal
of the December 3, 2013 final judgment was not timely. 4
Graves did, however, timely appeal the denial of her Rule
60(b) motion.
We are, therefore, limited in this appeal to reviewing
the Court of Federal Claims’s denial of Graves’s Rule
60(b) motion.
4 Even if the Court of Federal Claims had construed
Graves’s February 18, 2014 filing as a Notice of Appeal,
rather than a motion pursuant to Rule 60(b), the result
would be the same; the Notice of Appeal of the final
judgment would not have been timely filed within 60 days
of final judgment.
8 G.L.G. v. HHS
II
Typically, we review whether the Court of Federal
Claims had jurisdiction to hear a motion to review a
Special Master’s decision de novo. Widdoss v. Sec’y of
Health & Human Servs., 989 F.2d 1170, 1174 (Fed. Cir.
1993). We review the Court of Federal Claims ruling on a
Rule 60(b) motion, however, for an abuse of discretion.
Brickwood Contractors, Inc. v. United States, 288 F.3d
1371, 1376 (Fed. Cir. 2002). “An abuse of discretion exists
when the trial court’s decision is clearly unreasonable,
arbitrary or fanciful, or is based on clearly erroneous
findings of fact or erroneous conclusions of law.” Lazare
Kaplan Int’l, Inc. v. Photoscribe Techs., Inc., 714 F.3d
1289, 1293 (Fed. Cir. 2013) (internal quotation marks
omitted).
The Vaccine Act states that “[u]pon issuance of the
[S]pecial [M]aster’s decision, the parties shall have 30
days to file with the clerk of the United States Court of
Federal Claims a motion to have the court review the
decision.” 42 U.S.C. § 300aa-12(e)(1). The Court of Fed-
eral Claims Vaccine Rule 23(a) provides that a petitioner
“must file a motion for review with the clerk within 30
days after the date the decision was filed,” and that “no
extensions of time will be permitted . . . and the failure of
a party to file a motion for review in a timely manner will
constitute a waiver of the right to obtain review.” R. CT.
FED. CL., APP’X B, VACCINE R. 23(a). We have previously
held that “the 30-day time period in which to file a motion
for review under section 300aa-12(e)(1) is jurisdictional.”
Widdoss, 989 F.2d at 1177.
In Widdoss, we similarly determined the effect of a
Rule 60(b) motion on the 30-day filing deadline under
§ 300aa-12(e)(1). There, a petitioner filed her motion to
review the Special Master’s decision 31 days after the
decision issued. Id. at 1174. The clerk of the Court of
Federal Claims entered a sua sponte final judgment as
G.L.G. v. HHS 9
mandated by § 300aa-12(e)(3), and the petitioner filed a
motion for reconsideration that the Court of Federal
Claims treated as a Rule 60(b) motion. Id. The Court of
Federal Claims granted relief under Rule 60(b) “in ac-
cordance with the spirit and purpose of the Vaccine Act,”
and proceeded to rule on the merits of the Special Mas-
ter’s decision. Id. We held that Rule 60(b) cannot be used
to “escape a jurisdictional limitation.” Id. at 1177–78.
Rule 60(b) does not toll or extend the time period to file a
motion for review, and does not permit us to review the
merits of the Special Master’s decision. Thus, under
Widdoss, we may only consider if the Court of Federal
Claims abused its discretion in denying the Rule 60(b)
motion.
In Graves’s “Motion to Appeal Decision on Motion for
Review,” she sought reconsideration on the basis that
November 28 was a “Legal Holiday.” Per her argument,
the Court of Federal Claims received the Motion for
Review on December 2, which was the first day the Court
of Federal Claims was open after the Thanksgiving holi-
day, and the motion was therefore timely under Vaccine
Rule 19(a)(1). The Court of Federal Claims found that,
while it had mistakenly stated that the deadline to file
the Motion for Review was November 28, the actual 30-
day review period ran on November 27. According to the
Court of Federal Claims, because November 27 was not a
holiday or a weekend, the Court of Federal Claims found
it had to receive the motion by November 27 for the
motion to be timely.
The Court of Federal Claims did not abuse its discre-
tion in denying the Rule 60(b) motion. As mentioned, the
30-day deadline in 42 U.S.C. § 300aa-12(e)(1) is a jurisdic-
tional deadline not subject to extension. Widdoss, 989
F.2d at 1177. And, the Vaccine Rules state that the date
a motion or petition is received is the date the clerk
receives the motion for filing, not the date of mailing or
the date listed on the certificate of service. R. CT. FED.
10 G.L.G. v. HHS
CL., APP’X B, VACCINE R. 17(b)(4)(A) (“A document in
paper form is filed when it is received and marked filed by
the clerk, not when mailed.”). It is undisputed that the
clerk received Graves’s Motion for Review on December 2,
2013. And, because the Special Master’s decision issued
on October 28, 2013, the 30-day deadline to file the Mo-
tion for Review ran on November 27, 2013. See R. CT.
FED. CL., APP’X B, VACCINE R. 19(a)(1) (stating that the 30-
day period excludes the day of the event triggering the
deadline, but includes every day thereafter, including
intermediate weekends and legal holidays). While the
Court of Federal Claims’s January 29, 2014 order mistak-
enly identified November 28 as the day that Graves’s 30-
day period ran, this order issued after the actual deadline
had passed and did not influence Graves’s decision to file
after the 30-day deadline passed on November 27, 2013.
To the extent the Supreme Court’s decision in Hen-
derson v. Shinseki might cast doubt on the jurisdictional
nature of the 30-day deadline in 42 U.S.C. § 300aa-
12(e)(1), Graves does not challenge Widdoss or subsequent
cases holding that the deadline is jurisdictional. See, e.g.,
Price v. Sec’y of Health & Human Servs., No. 2014-5041,
2014 WL 1855585, at *2–3 (Fed. Cir. May 9, 2014). Even
if equitable tolling arguments could apply to 42 U.S.C.
§ 300aa-12(e)(1), moreover, we could not address those
arguments in this appeal, because her Motion to Appeal
Decision on Motion to Review (Rule 60(b) Motion) did not
raise any equitable tolling arguments. Claims of illness
surrounding her filing deadline were first made in her
March 19, 2014 Notice to Appeal. For these reasons, we
do not decide whether equitable tolling could be a grounds
to forgive Graves’s late filing with the Court of Federal
Claims.
CONCLUSION
The Court of Federal Claims did not abuse its discre-
tion in denying Graves’s Rule 60(b) motion because
G.L.G. v. HHS 11
Graves failed to file her Motion for Review of the Special
Master’s decision within the statutory 30-day time period.
We thus affirm the Court of Federal Claims dismissal of
Graves’s petition for compensation under the Vaccine Act.
AFFIRMED