Loutos v. Secretary of Health and Human Services

REISSUED FOR PUBLICATION
· INAL 31 MAR 2017
OSM
U.S. COURT OF FEDERAL CLAIMS
3Jn t{Je Wnittb ~tates QCourt of jfebtral QClaitns
No . 03-355V
(Filed: March 15, 20 17)
(Reissued: March 31, 2017)
FILED
(NOT TO BE PUBLISHED) MAR 3 1 2017
OSM
) U.S. COURT OF
PETER LOUTOS, II, and ) FEDERAL CLAIMS
RAMONA LOUTOS, as parents and )
natural guardians of P.A.L., III, a minor, )
)
Petitioners, ) •
)
v. )
)
SECRETARY OF HEALTII AND )
HUMAN SERVICES, )
)
Respondent. )
~~~~~~~~~~~~~~~)
Peter Loutos, II, and Ramona Loutos, pro se, Port St. Lucie, Florida.
Linda Sara Renzi, Senior Trial Counsel, Torts Branch, Civil Division, United States
Department of Justice, Washington, D.C., for respondent.
ORDER
LETTOW, Judge.
Pending before the court is petitioners' motion for review, filed March 8, 2017, ECF No.
154. The petitioners seek to overturn a decision by a special master rendered on December 9,
2016, dismissing their petition for compensation under the National Childhood Vaccine Injury
Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa- 1
to 300aa-34) ("Vaccine Act"), on the ground that it was untimely pursuant to the Vaccine Act's
three-year statute of limitations. Loutos v. Sec '.Y ofHealth & Human Servs., No. 03 -355V, 2016
WL 7665433, at* 1 (Fed. Cl. Spec. Mstr. Dec. 9, 2016). The case is an old one, having been
initiated on February 19, 2003, when Peter and Ramona Loutos filed a petition on behalf of their
minor child, P.A.L., alleging that P.A.L. developed autism spectrum disorder as a result of
certain vaccines he received. Id. The special master's decision dismissing the case on timeliness
grounds was reissued for publication on January 9, 2017, and judgment was entered on January
10,2017.
The Vaccine Act provides that "[u]pon issuance of the special master'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)(l). If a motion for
review is not timely filed, "the clerk of the United States Court of Federal Claims shall
immediately enter judgment in accordance with the special master's decision." 42 U.S.C. §
300aa-12(e)(3); see also Rules of the Court of Federal Claims ("RCFC"), App. B ("Vaccine
Rules"), Rule 23 (stating that a "party must file a motion for review with the clerk within 30 days
after the date the decision is filed" and that failure to do so "will constitute a waiver of the right
to obtain review"). The 30-day time limit to file a motion for review is jurisdictional. Widdoss
v. Sec'y of Dep 't of Health & Human Servs., 989 F .2d 1170, 1177 (Fed. Cir. 1993). Because of
this jurisdictional limitation, the court lacks power to address motions for review that are
untimely. See, e.g., Mahaffey v. Sec'y of Health & Human Servs., 368 F.3d 1378, 1379-81 (Fed.
Cir. 2004) (affirming the court's rejection of petitioner's motion for review because the motion
was filed two days after the 30-day period had expired). Neither this court nor the Federal
Circuit "may excuse a failure to satisfy the 30-day filing requirement." Hervey v. Sec'y of
Health & Human Servs., 88 F.3d I 001, 1002 (Fed. Cir. 1996) (citing Widdoss, 989 F.2d 1170).
Here, petitioners filed their motion for review of the special master's decision well past the 30-
day limit, and the court therefore lacks jurisdiction to address petitioners' motion.
For the reasons stated, petitioners' motion for review is DISMISSED for failure to
comply with the 30-day filing requirement.
Petitioners also have pending a motion for payment of expert fees, ECF No. 152, which
was filed on March 3, 2017, a few days before their motion for review was submitted.
Exercising authority granted pursuant to Vaccine Rule 34(b ), the court REMANDS the case to
the special master to enable the special master to act on this motion.
No costs.
It is so ORDERED.
Ch1#.&~
Judge
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