                                                        OREGE[{AL
                            llntlll @nitr! btsttg @ourt of frlersl                                 @tsfms

                                                                No. 16-1046 V
                                                            (Filed April 6,2017)l
                                                                                                        FILED
                                                             UNPUBLISHED                              APR   -   6   2017

                                                                                                     U.S. COURT OF
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APRISES PHILLIPS and                                                              *
IVAN PHILLIPS, SR., parents of                                                    ,<


Ivan Phillips, a minor,                                                           *

                                         Petitioners,                             *    National Childhood Vaccine
                                                                                  *    Injury Act of 1986, 42 U.S.C.
                                                                                  *    $$ 300aa-l to -34 (2012);
                                                                                  *    Untimely Petition under 42
SECRETAR' OF HEALTH AND                                                           *    U.S.C. g 300aa-16(a)(2).
HL]MAN SERVICES,                                                                  *

                                         Respondent.                              ;
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              Apris es P hillips and Ivan P hillips, Sr., Chelsea, AL, pro se petitioners.

      Ryan D. Pyles,United States Department of Justice, with whom were
Joyce R. Branda, Acting Assistant Attorney General, C. Salvatore D'Alessio,
Acting Director, Catherine E. Reeves, Deputy Director, and Heather L. pearlman,
Assistant Director, Washington, DC, for respondent.



                                                                  OPINION


BUSH, Senior Judge.


   r/ Pursuant to Rule 18(b)
                             ofAppendix B ofthe Rules of the United States court ofFederal
claims, this opinion was initially filed under seal on March 10,201j. pursuant to 4 of the
                                                                                   fl
ordering language, the parties were to propose redactions ofthe information contained therern on
or before March24,2017. No proposed redactions were submitted to the court.
       Now pending before the court is petitioners' motion for review of the special
master's dismissal of their petition for compensation under the National Childhood
Vaccine Injury Act of 1986, 42 U.S.C. gg 300aa-1 to -34 (2012) (the Vaccine Act).
See Phillips ex rel. Phillips v. Sec'y of Health & Human Servs., No. 16-1046V,
2016 WL 7636932 (Fed. Cl. Spec. Mstr. Nov. 28, 2016) (Opin.).2 Petitioners seek
compensation on behalf of their son Ivan, who allegedly developed encephalopathy
and developmental difficulties as a result of vaccinations administered on August
25,2008 and December 31, 2008. The special master dismissed the petition as
untimely under 42 U.S.C. $ 300aa- l6(a)(2), based on the special master's finding
that Ivan first displayed symptoms of his alleged vaccine-related injuries more than
three years before the filing of the petition on August 23,2016. The court, finding
no error in the special master's findings of fact or conclusions of law, denies
petitioners' motion for review and sustains the dismissal of this case.

                                       BACKGROUND'

        Factual Background

       Ivan was born on February 19,2007. When he was eighteen months old he
received a number of vaccinations, including the MMR (measles-mumps-rubella)
vaccine, all administered on August 25,2008. According to his parents, he then
stopped developing normally. Later that year, on December 3 1, 2008, Ivan had a
second MMR vaccination, which allegedly caused another round of developmental
problems, described by his parents as "regression." Pet. at 1. Although there is no
precise diagnosis of Ivan's alleged vaccine-related injury in the petition, it might
be broadly summarized as an encephalopathy-related developmental injury. The
petition acknowledged that Ivan's symptoms occurred more than three years before
the petition was filed, and requested that the Office of Special Masters of the
Vaccine Program of this court "extend the deadline for filine this case." Id. at 2.

U.     Procedural History


      The court cites to the pages ofthe opinion posted on this court's website on January 3,
- -'/
2017,  not to the pagination of the Westlaw version of the document.

  '/ These facts are taken from the petition and other documents filed in this case bv petitroners.
The court makes no findings of facts in this opinion.
       Petitioners filed their petition for compensation under the Vaccine Act on
August 23,2016. On August 30,2016, the special master ordered petitioners to
show cause why their claim should not be dismissed as untimely pursuant to 42
U.S.C. $ 300aa-16(a)(2). Petitioners responded on September 29,2016 with
additional factual allegations of Ivan's symptoms which were the subject of
medical appointments in 2010. The special master found that the symptoms of
Ivan's alleged vaccine injury became apparent in the time-frame of 2008-2010.
Opin. at 4.

       The special master concluded that the symptoms of any vaccine injury that
Ivan suffered were manifest well before the thirty-six month limitations period
provided by 42 U.S.C. g 300aa-16(a)(2). Petitioners' response to the special
master's show cause order did not refute this finding, but attempted to excuse the
untimeliness of the petition by citing their difficulties in navigating the health care
system and their lack of knowledge of the Vaccine Act's compensation program.
LetterofSept.29,2016. Intheirletterandintheirpetition, Ivan'sparentsalso
reported that at least two of Ivan's doctors had assured them the MMR vaccine was
not the cause of Ivan's developmental problems. Id.;Pet. at2. The special master
considered petitioners' plea "to extend the deadline for filing this case," pet. at2,
to be a request to equitably toll the Vaccine Act's statute of limitations.

        The special master declined to toll the statute of limitations embodied in 42
U.S.C. S 300aa-16(a)(2). Relying on the binding precedent of Cloer v. Seoetary of
Health & Human Services,654 F.3d 1322 (Fed. Cir.20ll) (en banc), he found that
ignorance of the vaccine Act and vaccine injury causation theories does not excuse
the failure to file a timely petition for compensation under the Act. The petition in
this case was dismissed on November 28,2016 by order of the special master.

      Petitioners filed theirpro se motion for review of that dismissal on
December 28,2016. The govemment's response to their motion was filed on
January 24,2017. Petitioners' motion is therefore ripe for review.a

    o/ On February 23,2017, petitioners
                                          filed a document titled "Election to File a Civil Action."
If the court understands the overall intent of this document, which is not easy to decipher,
petitioners therein attempt to elect to pursue a vaccine injury claim in another forum, but only if
a deadline for such an election is imminent. The document references a "Judgment" filed on
Jarnary 24,2017 . The government's response brief was hled on January 24,2017. That
                                                                                          (continued...)
                                          DISCUSSION

          Standards ofReview

      This court has jurisdiction to review the decision of a special master in a
Vaccine Act case. 42 U.S.C. $ 300aa-12(e)(2). This court uses three distinct
standards of review in Vaccine Act cases, depending upon which aspect ofa
special master's judgment is under scrutiny:

                 These standards vary in application as well as degree of
                 deference. Each standard applies to a different aspect of
                 the judgment. Fact findings are reviewed . . . under the
                 arbitrary and capricious standard; legal questions under
                 the "not in accordance with law" standard; and
                 discretionary rulings under the abuse of discretion
                 standard.

Munnv. Sec'y of Dep't of Health & Human Servs.,970 F.2d 863, 870 n.l0 (Fed.
Cir.1992).

       The arbitrary and capricious standard of review, applied to the special
master's factual findings, is limited in scope and is highly deferential. Lampe v.
Sec'y of Health & Human Servs.,2l9 F.3d 1357, 1360 (Fed. Cir. 2000). For legal
questions, the court reviews the special master's conclusions de novo, without
deference. Ayera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed.
Cir. 2008); Saunders v. Sec'y of Dep't of Health & Human Servs.,25 F.3d 103 l,
1033 (Fed. Cir. 1994).

      In this case, the court reviews the special master,s factual findings as to the
timing of Ivan's first symptoms of an encephalopathy-related developmental injury
(...continued)
 document is not ajudgment. only the clerk's office ofthis court can enter ajudgment; when
judgment is entered, petitioners will receive notice of that fact.

        Pursuant to vaccine Rule 12, an election "to file a civil action for damages,'must occur
"[w]ithin 90 days after the entry ofjudgment." This opinion directs the clerk o]the court to
enter judgment in this case. The court cannot advise petitioners on the "election" mentioned in
Vaccine Rule 12. To elect, or not to elect, to file a civil action for damages is their choice alone.
under the deferential arbitrary and capricious standard. See, e.g., Carson ex rel.
Carson v. Sec'y of Health & Human Servs.,727 F.3d 1365, 1369 (Fed. Cir. 2013)
(affirming a special master's fact findings as to symptom onset under the arbitrary
and capricious standard). By contrast, the special master's interpretation and
application of the Vaccine Act's statute of limitations present questions of law
which the court reviews de noyo. Goetz v. Sec'yof Health & Human Servs.,45
Fed. Cl. 340,341(1999), aff'd,4 F. App'x 827 (Fed. Cir.200l).

II.    The Special Master Did Not Err in Dismissing the Petition as Untimely

       Pursuant to the Vaccine Act's limitations provision, "no petition may be
filed for compensation under the Program for [a vaccine-related] injury after the
expiration of 36 months after the date of the occuffence of the first symptom or
manifestation of onset or the significant aggravation of such injury." 42 U.S.C.
$ 300aa-16(a)(2). The special master found that Ivan's symptoms of an alleged
vaccine-related injury occurred in the 2008-2010 time-frame, more than 36 months
before the petition was filed in this case. Petitioners do not attempt to refute this
factual finding, and the record before the special master supports that finding as to
the onset of Ivan's symptoms. Thus, under the arbitrary and capricious standard
applicable here, Munn,970F.2d at 870 n.10, the special master's finding that the
petition filed in this case was untimely under 42 U.S.C. $ 300aa-16(a)(2) must be
sustained.

        The only real dispute before the court, then, is whether the special master
erred when he did not equitably toll the limitations period for the filing of the
petition in this case. Following Cloer, the special master found that petitioners'
allegation that they were unaware of the Vaccine Act's compensation program
during the first three years of Ivan's alleged vaccine injury was not sufficient
reason to equitably toll 42 U.S.C. g 300aa-16(a)(2). See Opin. at 4 (commenting
that the limitations period is not "contingent on when a petitioner becomes aware
of the existence of the Vaccine Program"). Again applyin g Cloer, the special
master heid that petitioners' delayed investigation of a causal link between Ivan's
MMR vaccinations and Ivan's alleged injury, purportedly delayed because of
reassurances from their children's pediatricians, also was not cause to equitably toll
the statute of limitations. Id. rn the court's view, the special master's application
of the law of equitable tolling, as expressed in Cloer, is unassailable.
        Three aspects of the Cloer decision are relevant to this question. First, the
 United States Court of Appeals for the Federal Circuit, acting en banc, construed
the Vaccine Act to not include a "discovery rule," under which the limitations
 period could vary depending on the date a vaccinee discovered the causal link
 between his or her health condition and a parlicular vaccination. 654 F.3d aI 1340.
 While discussing this issue, the Federal Circuit stated: "In our view the personal,
plaintiff-oriented approach ofa discovery rule is antithetical to the simple,
 symptom-keyed test expressly required by the Vaccine Act's text." Id. Congress,
according to Cloer, intended the Vaccine Program to be simple and easy to
administer, and for the results of the compensation program to be the same for
similarly-situated vaccinees. 1d. congress did not intend compensation outcomes
to "vary widely based on each plaintiff s personal circumstances.', 1d This
passage in Cloer counsels against tolling the limitations period for vaccine Act
petitions to accommodate the date a petitioner discovers that the vaccine program
exists or the date that petitioners discover information, accurate or inaccurate,
linking vaccinations to the symptoms experienced by their ch1td. cf. speights ex
rel. Speights v. Sec'y of Health & Human.lervs., No. 03-2619V .2013 WL
 5944084, at*13 & n.36 (Fed. Cl. Spec. Mstr. Oct. 17,2Ol3) (holding that
congress did not intend for the vaccine Act's statute of limitations to be tolled if
the only justification for tolling was that a petitioner had not received information
about the vaccine Act's compensation program at the time of vaccination (citing
Cloer,654 F.3d at 1327)).

       A second passage in Cloer is even more inhospitable to petitioners' request
for equitable tolling. citing a number of cases where the equitable tolling of
statutes of limitation was contemplated, the Federal circuit noted that the
application of equitable tolling is limited to extraordinary circumstances, such as a
timely but ineffective filing of a defective pleading, a filing prevented by fraud or
duress, or where the diligent pursuit of a legal right was delayed by unusual
circumstances . cloer, 654 F.3d at 1344-45 & n.1 I (citations omitted). Equitable
tolling in Vaccine Act cases, pursuant to Cloer, is a doctrine with,,stringent
requirements." Id. at 1345 n. 1 I . Here, petitioners' excuse for not filing a timely
vaccine Act petition is simply that they were unaware of the vaccine program, or
that their pediatricians did not believe that Ivan's developmental problemJ could be
traced to his MMR vaccinations. The special master correctly held that under
Cloer, ignorance of the Vaccine Act and theories linkine vaccinations to



                                          6
developmental problems is not sufficient to justifu the equitable tolling of 42
U.S.C. $ 300n-r 6(a)(2).

       Third, and equally fatal to petitioners' request, is the Federal Circuit's
application of the equitable tolling analysis to the facts of Cloer. Dr. Melissa Cloer
requested equitable tolling in that proceeding because she was only alerted to a
possible link between her multiple sclerosis and her Hepatitis-B vaccine in2004,
whereas her first symptom of the disease was seen in 1997. She argued that it was
"inequitable and unfair to hold her to the 36 month filing period when she had no
reason to know, before 2004, of the causal link between her injury and the Hep-B
vaccine." Cloer,654 F.3d at 1344. The Federal Circuit rejected this argument
because Dr. Cloer had not cited any extraordinary circumstances preventing her
from filing a timely Vaccine Act petition. Id. at 1344-45.

       In doing so, the Federal Circuit rejected Dr. Cloer's ,,unfair result because
she had no reason to know" equitable tolling argument. Although Dr. Cloer
contended that it was inequitable and unfair to be deprived of access to vaccine
Act compensation due to a lack of information at the time of the onset of the
alleged injury, the Federal circuit did not agree that Dr. cloer's argument justified
equitable tolling in that case. Id. at 1344. Here, too, petitioners state that it is
unfair to deprive Ivan of vaccine Act compensation because the vaccine Act and
vaccine-injury causation theories were unknown to his family at the crucial time.
Mot. for Review at 1.

        The Cloer decision, however, makes it clear that lack of information
 essential to a Vaccine Act claim is not sufficient, in itself, to justi$ equitable
tolling of 42 U.S.C. g 300aa-16(a)(2). See 654 F.3d at 1345 (denying Dr. Cloer's
appeal, in part, because of "Dr. cloer's failure to point to circumstances that could
justifu the application of equitable tolling to forgive her untimely claim").
Ignorance of the provisions of the vaccine Act has repeatedly been held to be
insufficient to justifu equitable tolling of the limitations period in 42 U.S.C.
$ 300aa-16(a)(2). See Maackv. Sec'y of Health & HumanServs., No. l2-354y,
2013 WL 4718924, at *5 (Fed. Cl. Spec. Msrr. Aug. 6,2013) (,,A petitioner,s lack
of knowledge of the law does not constitute an extraordinary circumstance
permitting equitable tolling of the statute of limitations." (citingCloer,654 F.3d at
 1344-a5); Johnston v. Sec'y of Health & Human Servs., No. ll-796V,2013 WL
664709' at *5 (Fed. cl. Spec. Mstr. Jan. 3l,2ol3) ("To endorse the argument that
ignorance of the law thereby tolls the application of the Vaccine Act limitations
period would not be consistent with the Federal Circuit's teaching lin Cloerf that
the equitable tolling doctrine is to be applied 'sparingly."'); Anderson v. Sec'y of
Health & Human,Servs., No. l2-16V,2013 WL 691003, at *4 (Fed. Cl. Spec.
Mstr. Jan. 29,2013) ("It is well-established that a petitioner's lack of knowledge of
the law does not constitute an extraordinary circumstance justifuing equitable
tolling of the statute of limitations.") (citing cases).

        Nor is equitable tolling available simply because a doctor advised parents
that there was no causal link between a vaccination and the child's alleged vaccine
injury. See, e.g., Powers v. Sec'y of Health & HumanServs., No. l4-1195V,2016
WL 1730189, at *5 (Fed. Cl. Spec. Mstr. Apr. 8,2016) (holdingthatthe alleged
failure of doctors to diagnose a child's "condition as a vaccine injury" is irrelevant
to the equitable tolling inquiry under Cloer); Goetz,45 Fed. Cl. at 343 (finding that
equitable tolling did not apply even where the filing of a Vaccine Act claim was
"persistently thwarted by [allegedly] incorrect information from doctors"). Under
the de novo standard of review appiicable here,, Munn, 970 F .2d at 870 n. 10, the
court sustains the special master's decision that petitioners failed to identifu
extraordinary circumstances which would justiff the equitabie tolling of the
limitations period in 42 U.S.C. g 300aa-16(a)(2).

                                  CONCLUSION

      For the foregoing reasons, the court finds no error in the special master's
dismissal of petitioners' claim as untimely under 42 U.S.C. g 300aa-16(a)(2).
Accordingly, it is hereby ORDERED that

      (1)    Petitioners' Motion for Review, filed December 28, 2016. is
             DENIED;

      (2)    The decision of the special master, filed November 28, 2016, is
             SUSTAINED;

      I il   The Clerk's Office is directed to ENTER final judgment in
             accordance with the special master's decision of November 28,2016;
             ano
(4)   The parties shall separately FILE any proposed redactions to this
      opinion, with the text to be redacted clearly marked out or otherwise
      indicated in brackets, on or before March 24,2017 .




                                              J.




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