                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                     2008-5019

                YLUMINADA MOJICA and JULIO ACEVEDO, as Legal
                     Representatives of JOSHUA ACEVEDO,

                                                    Petitioners-Appellants,

                                          v.

                SECRETARY OF HEALTH AND HUMAN SERVICES,

                                                    Respondent-Appellee.


      Mindy Michaels Roth, Britcher, Leone & Roth, LLC, of Glen Rock, New Jersey,
argued for petitioners-appellants.

      Heather L. Pearlman, Trial Attorney, Torts Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for respondent-appellee. With her
on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Timothy P.
Garren, Director, Vincent J. Matanoski, Acting Deputy Director, and Catharine E.
Reeves, Assistant Director.

Appealed from: United States Court of Federal Claims

Judge Charles F. Lettow
                       NOTE: This disposition is nonprecedential



 United States Court of Appeals for the Federal Circuit


                                     2008-5019

                    YLUMINADA MOJICA and JULIO ACEVEDO,
                  as Legal Representatives of JOSHUA ACEVEDO,

                                                             Petitioners-Appellants,

                                          v.

                SECRETARY OF HEALTH AND HUMAN SERVICES,

                                                             Respondent-Appellee.


                Appeal from the United States Court of Federal Claims
                    in case 07-VV-501, Judge Charles F. Lettow.

                          __________________________

                             DECIDED: July 18, 2008
                          __________________________


Before LINN, Circuit Judge, CLEVENGER, Senior Circuit Judge, and MOORE, Circuit
Judge.

PER CURIAM.


      Yluminada Mojica and Julio Acevedo ("petitioners"), as legal representatives for

their son Joshua Acevedo, sought compensation under the National Vaccine Injury

Compensation Program.      Respondent Secretary of Health and Human Services

("Secretary") moved to dismiss their case on the grounds that their claim is barred by

the statute of limitations contained in 42 U.S.C. § 300aa-16(a)(2). The special master

assigned to petitioners' case granted respondent's motion and the United States Court
of Federal Claims affirmed. Mojica v. Sec'y of Health and Human Servs., 79 Fed. Cl.

633 (2007). We affirm.

                                               I

       The relevant statute of limitations provides that no petition for compensation may

be filed "after the expiration of 36 months after the date of the occurrence of the first

symptom of onset or of the significant aggravation of such injury." The Vaccine Act

stipulates that "[a] proceeding for compensation . . . shall be initiated by service upon

the Secretary and the filing of a petition . . . with the United States Court of Federal

Claims."    42 U.S.C. § 300aa-11(a)(1) (2000).          We have held that the statute of

limitations is not subject to equitable tolling. Brice v. Sec'y of Health and Human Servs.,

240 F.3d 1367, 1374 (Fed. Cir. 2001). In other words, if a petition for relief is filed

outside the mandatory time period, the petition must be dismissed, even though

equitable reasons exist to excuse the delay in filing the petition.

                                               II

       In this case, it is undisputed that the petitioners filed their petition for relief with

the Court of Federal Claims outside the 36 months allowed for filing by the statute of

limitations. Because of this fact, the special master dismissed the petition as "duty

bound to apply the law, despite the harsh–untenable, really–result." Acevedo v. Sec'y

of Health and Human Servs., No. 07-501V, 2007 WL 2706159, at *5 (Fed. Cl. Spec.

Mstr. Aug. 31, 2007).

   On petitioners' motion for review in the Court of Federal Claims, the court stated that

it "is obliged to treat Brice as correctly stating the law, such that there is no possibility of

equitable tolling under the Vaccine Act even in the circumstances presented by this




2008-5019                                  2
case where counsel took reasonable steps to fulfill her obligation to file in time. This

result is draconian but compelled by law." Mojica, 79 Fed. Cl. at 639.

                                             III

       As is the case with the special master and the Court of Federal Claims, this panel

is obligated to follow the law of the circuit as expressed in Brice. Until overturned by the

Supreme Court or an en banc decision of this court, Brice is good law. Texas American

Oil Co. v. United States Dep’t of Energy, 44 F.3d 1557, 1561 (Fed. Cir. 1995) (en banc)

(“This court applies the rule that earlier decisions prevail unless overruled by the court

en banc, or by other controlling authority such as intervening statutory change or

Supreme Court decision.”). Because it is not disputed that the petition for relief under

the Vaccine Act in this case was filed outside the time provided by the statute of

limitations, we must affirm.

                                         COSTS

       No costs.




2008-5019                                3
