                                                      ORIOIt\|AL
                         Iln tW @nitr! $tstrs @ourt of felerul @lsims
                                                           No. 16-1045 V

                                                     (Filed April 6, 2017)r                   FILED
                                                                                             APR   - 6 20t7
                                                       UNPUBLISHED
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APRISES PHILLIPS                         and                            *
IVAN PHILLIPS, SR., parents of                                          *
Ivanka Phillips, a                 minor,                               *
                                                                        x
                                     Petitioners,                       *   National Childhood Vaccine
                                                                        *   Injury Act of 1986, 42 U.S.C.
                                                                        *   $$ 300aa-1 to -34 (2012);
                                                                        *   Untimely Petition under 42
SECRETAR' OF HEALTH                               AND                   *   U.S.C. g 300aa-16(a)(2).
HUMAN SERVICES,

                                     Respondent.
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            Aprises Phillips and lvan Phillips, 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
                                             of the Rules of the united States court of Federal
Claims, this opinion was initially filed under seal on March 10,2017. pursuant to fl 4 of the
ordering language, the parties were to propose redactions ofthe information contained therein on
or befbre 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. 16-1045V,
2016 WL 7638460 (Fed. Cl. Spec. Mstr. Nov.29,20 l6) (Opin.).2 Petitioners seek
compensation on behalfoftheir daughter Ivanka, who allegedly developed
encephalopathy and developmental difficulties as a result ofvaccinations
administered to her brother Ivan on August 25, 2008 and December 3 1, 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 Ivanka first displayed
symptoms of her 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

        Ivanka was bom on March I , 2010. When she was two months old, in May
2010, her brother Ivan is alleged to have had the measles, which the petition
attributes to his MMR (measles-mumps-rubella) vaccinations on August 25, 2008
and December 31, 2008. Her parents allege that Ivanka also came down with
measles in May 2010 through exposure to her brother, and suffered a vaccine-
related injury as a result. Pet. at2. Although there is no precise diagnosis of
Ivanka's alleged vaccine-related injury in the petition, it might be broadly
summarized as an encephalopathy-related developmental injury. See Pet. at I
("Effects of the[] encephalopathy include problems with fine and gross motor
skills/functioning, behavior(psychological), and learning(cognitive)."). The
petition acknowledged that Ivanka's symptoms occurred more than three years
before the petition was filed, and requested that the Office of Special Masters of


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

  r/ These facts are taken from the petition and other documents filed in this case by petitioners.
The court makes no findings offacts in this opinion.
the Vaccine Program of this court "extend the deadline for filing this case." 1d at
a


II.      Procedural History

       Petitioners filed their petition for compensation under the Vaccine Act on
August 23,2016. They supplemented the petition with a letter which explained
their delay in filing the petition; petitioners specifically noted that they "had no
idea that the National Vaccine Injury Compensation Program existed." Letter of
Sept. 29, 2016. Petitioners 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. Id. In their letter and in
their petition, Ivanka's parents also reporled that at least two of their children's
doctors had assured them the MMR vaccine was not the cause of their children'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 found that the symptoms of any vaccine injury that
Ivanka suffered, in May 2010, were manifest well before the thirty-six month
limitations period providedby 42 U.S.C. $ 300aa-16(a)(2). Opin. at 4-5. The
special master considered the petition and supplemental letter to include a plea that
he equitably toll the Vaccine Act's statute of limitations. Id. at 5. The special
master declined to toll the statute of limitations embodied in 42 U.S.C. $ 300aa-
 16(a)(2). Relying on the binding precedent of Cloer v. Secretary 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 as untimely on November 29, 2016 by order of the special
master.

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


    "/ On February 23,2017, petitioners filed a document titled "Election to File a Civil Action."
                                                                                        (continued...)
                                          DISCUSSION

L         Standards of Review

      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 ofdiscretion
                 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 tt.
Sec'y of Health & Human Sens., 219 F.3d I 357, 1 360 (Fed. Cir. 2000). For legal
questions, the court reviews the special master's conclusions de novo, without
deference. Averav. Sec'y of Health & HumanServs., 515 F.3d 1343, 1347 (Fed.



(...continued)
 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
 January 24,2017. The govemment's response brief was filed on January 24,2017. That
 document is not a judgment. Only the Clerk's Office of this court can enter a judgment; when
judgment is entered, petitioners will receive notice ofthat 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 ofthe 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.
Cir. 2008); Saunders v. Sec'y of Dep't of Health & Human Servs.,25 F.3d 1031,
1033 (Fed.   Cir. 1994).

       In this case, the court reviews the special master's factual findings as to the
timing of Ivanka's first symptoms of an encephalopathy-related developmental
injury under the deferential arbitrary and capricious standard. See, e.g., Carson ex
rel. Carsonv. 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 novo. Goetzv. Sec'y of 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 occunence of the first symptom or
manifestation of onset or the significant aggravation of such injury." 42 U.S.C.
$ 300aa- l6(a)(2). The special master found that Ivanka's first symptoms of an
alleged vaccine-related injury occurred in May 2010, 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 Ivanka's symptoms.t Thus, under the arbitrary and capricious standard
applicable here, Munn,970 F .2d at 870 n. 10, the special master's finding that the
petition filed in this case was untimely vnder 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 Ivanka's alleged vaccine injury was not sufficient
reason to equitably toll 42 U.S.C. g 300aa-16(a)(2). See Opin. at 5 (commenting


   5/ Ivanka's measles episode in May 2010 is alleged to have caused encephalopathy, although
the precise date of the encephalopathy is not provided in the petition.
that the limitations period is not "contingent on when a Petitioner becomes aware
of the existence of the Vaccine Program"). Again applying Cloer, the special
master held that petitioners' delayed investigation of a causal link between Ivan's
MMR vaccinations and Ivanka'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. In the court's view, the special master's application
of the law of equitable tolling, as expressed in Cloer, is unassailable.

      Th-ree aspects of the Cloer decision are relevant to this question. First, the
United States Court of Appeals for the Federal Circuit, actitg 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 particular vaccination. 654 F.3d at 1340.
While discussing this issue, the Federal Circuit stated: "In our view the personal,
plaintiff-oriented approach of a 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 chrld. Cf. Speights ex
rel. Speights v. Sec'y of Health & Human Servs., No. 03-2619Y,2013 WL
 5944084, at *13 & n.36 (Fed. Cl. Spec. Mstr. Oct. 17,2013) (holdingthat
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 legai right was delayed by unusual
circumstances   . Cloer,654 F.3d at 1344-45 & n. 1 1 (citations omitted). Equitable
tolling in Vaccine Act cases, pursuant to Cloer, is a doctrine with "stringent
requirements." Id. at 1345 n.11. 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 Ivanka's developmental problems could
be traced to Ivan's MMR vaccinations. The special master correctly held that
under Cloer, ignorance of the Vaccine Act and theories linking vaccinations to
developmental problems is not sufficient to justiff the equitable tolling of 42
U,S.C. $ 300aa-r6(a)(2).

       Third, and equally damning 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, ofthe 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 ofaccess 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 Ivanka of Vaccine Act compensation because the Vaccine Act
and vaccine-injury causation theories were unknown to her family at the crucial
time. Mot. for Review at l. Mot. for Review at l.

        The Cloer decision, however, makes it clear that lack of information
 essential to a Vaccine Act claim is not sufficient, in itself, to justifu equitable
tolling of 42 U.S.C. $ 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
justi$, the application of equitable tolling to forgive her untimely claim").
 Ignorance of the provisions of the Vaccine Act has repeatedly been held to be


                                           7
insufficient to justifli equitable tolling of the limitations period in 42 U.S.C.
$ 300aa-16(a)(2). See Maackv. Sec'y of Health & Human Servs., No. 12-354V,
2013 WL 4718924, at *5 (Fed. Cl. Spec. Mstr. Aug. 6,2013) ("A petitioner's lack
ofknowledge of the law does not constitute an extraordinary circumstance
permitting equitable tolling of the statute of limitations." (ctting Cloer,654 F.3d at
 l3aa-45));Johnstonv. Sec'y of Health & Human Servs., No. l1-796Y,2013 WL
664709, at *5 (Fed. Cl. Spec. Mstr. Jan. 31,2013) ("To endorse the argumentthat
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 Cloer]that
the equitable tolling doctrine is to be applied 'sparingly."'); Anderson v. Sec'y of
Health & Human Servs., No. l2-16Y,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.9., Powers v. Sec'y of Health & Human Servs., No. I4-II95Y ,2016
WL 1730189, at *5 (Fed. Cl. Spec. Mstr. Apr. 8, 2016) (holding that the alleged
failure of doctors to diagnose a child's "condition as a vaccine injury" is irrelevant
to the equitable tolling inquiry tnder 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 applicable 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 justifu the equitable 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. $ 300aa-16(a)(2).
Accordingly, it is hereby ORDERED that

      (l)    Petitioners' Motion for Review, filed December 28,2016, is
             DENIED;
(2)   The decision of the special master, filed November 29,2016,is
      SUSTAINED;

(3)   The Clerk's Office is directed to ENTER final judgment in
      accordance with the special master's decision of November 29,2016;
      and

(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.   BU




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