            In the United States Court of Federal Claims
                                          No. 07-889V

                                       (Filed: May 3, 2013)

**********************************
                                               )       Vaccine case; petitioners’ challenge to a
DOUG PALUCK and RHONDA                         )       special master’s failure to act on a
PALUCK, as parents and natural                 )       remanded vaccine case within the
guardians on behalf of their minor son,        )       statutorily specified time; 42 U.S.C.
KARL PALUCK,                                   )       § 300aa-12(e)(2)(C); absence of
                                               )       mandatory remedy; analogy to a request
                       Petitioners,            )       for relief by way of a writ of mandamus
                                               )
       v.                                      )
                                               )
SECRETARY OF HEALTH AND                        )
HUMAN SERVICES,                                )
                                               )
                       Respondent.             )
                                               )
**********************************

      Sheila A. Bjorklund, Lommen, Abdo, Cole, King & Stageberg, P.A., Minneapolis,
Minnesota, for petitioners.

       Chrysovalantis P. Kefalas, Trial Attorney, Torts Branch, Civil Division, United States
Department of Justice, Washington, D.C., for respondent. With him on the briefs were Stuart F.
Delery, Principal Deputy Assistant Attorney General, Civil Division, and Rupa Bhattacharyya,
Director, Vincent J. Matanoski, Deputy Director, and Catharine E. Reeves, Assistant Director,
Torts Branch, Civil Division, United States Department of Justice, Washington, D.C.

                                      OPINION AND ORDER 1

LETTOW, Judge.

        Petitioners Doug and Rhonda Paluck, on behalf of their son, Karl Paluck, seek
modification of this court’s decision rendered April 18, 2012, remanding this case to a special
master pursuant to the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
§ 311, 100 Stat. 3743, 3755-84 (1986) (codified as amended at 42 U.S.C. §§ 300aa-1 to -34)
(“Vaccine Act”). The Palucks contend that the special master assigned to the case has exceeded
the time period allotted for action on a remand under the Vaccine Act, and ask this court to make
       1
        In accord with the Rules of the Court of Federal Claims (“RCFC”), App. B (“Vaccine
Rules”), Rule 18(b), this opinion and order is initially filed under seal. By rule, the parties are
afforded fourteen days in which to propose redactions.
its own findings of fact and issue a decision on entitlement in their favor. The government
argues that this court’s statutory power to review action by a special master has not been
properly invoked because the special master has not issued a decision on remand, and,
alternatively, that the remand time period set forth in the Vaccine Act is not mandatory. The
petitioners’ motion for review, filed January 30, 2013, has been fully briefed, and a hearing was
held on April 10, 2013.

                                        BACKGROUND

        The petitioners filed this action under the Vaccine Act on December 21, 2007. The
special master assigned to the case denied petitioners’ claim for compensation on December 14,
2011. Paluck v. Secretary of Health & Human Servs., No. 07-889V, 2011 WL 6949326 (Fed.
Cl. Spec. Mstr. Dec. 14, 2011) (“Paluck I”). Upon review of that denial, by a decision rendered
April 18, 2012, this court vacated and remanded the special master’s decision, while “ma[king]
no affirmative findings of its own.” Paluck v. Secretary of Health & Human Servs., 104 Fed. Cl.
457, 484 (2012) (“Paluck II”).

        On remand, the parties opted not to present additional testimony. Supplemental briefing
was completed by September 19, 2012. See Pet’rs’ Mot. for Review by the Ct. of Fed. Claims
Because Remand Period Has Expired (“Pet’rs’ Mot.”) at 2, ECF No. 140; Resp’t’s Mem. in
Resp. to Pet’rs’ Mot. for Review (“Resp’t’s Opp’n”) at 4, ECF No. 141; Hr’g Tr. 9:2 to 10:7,
24:5 to 25:25 (Apr. 10, 2013). A decision by the special master has not yet been issued.
Petitioners contend that this delay violates 42 U.S.C. § 300aa-12(e)(2)(C), which specifies that
“[t]he court may allow not more than 90 days for [such] remands,” and they argue that the delay
requires this court to make its own findings of fact and issue a decision on entitlement pursuant
to Subparagraph 300aa-12(e)(2)(B). See Pet’rs’ Mot. at 3. That provision states that “the United
States Court of Federal Claims shall have jurisdiction to undertake a review . . . and may . . . set
aside any findings of fact or conclusion of law of the special master found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own
findings of fact and conclusions of law.” 42 U.S.C. § 300aa-12(e)(2).

                                        JURISDICTION

        Subsection 12(a) of the Vaccine Act bestows upon this court “jurisdiction over
proceedings to determine if a petitioner . . . is entitled to compensation under the [National
Childhood Vaccine Injury Compensation] Program and the amount of such compensation. The
United States Court of Federal Claims may issue and enforce such orders as the court deems
necessary to assure the prompt payment of any compensation awarded.” 42 U.S.C. § 300aa-
12(a). Subparagraph 12(d)(3)(A) specifically grants this court jurisdiction to review “decision[s]
of the special master[s]” with respect to the availability and amount of compensation due to
petitioners under the Vaccine Act. 42 U.S.C. § 300aa–12(d)(3)(A); see also Shaw v. Secretary of
Health & Human Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010). In this instance, because the
special master previously issued a decision denying petitioners’ claim for compensation, this
court’s jurisdiction was invoked by a properly filed petition to review that denial. The court’s




                                                 2
action in vacating and remanding the case to the special master did not thereafter remove or elide
this court’s jurisdiction, contrary to the government’s suggestion. See Resp’t’s Opp’n at 4-8.

         In support of its jurisdictional position, the government cites several decisions by judges
of this court that refused to entertain petitions for review of interlocutory decisions by special
masters. In Weiss v. Secretary of Dep’t of Health & Human Servs., 59 Fed. Cl. 624 (2004), the
court refused to take jurisdiction over an interim order of a special master that dismissed one of
petitioners’ three theories of causation. Similarly, in Spratling v. Secretary of Dep’t of Health &
Human Servs., 37 Fed. Cl. 202 (1997), the petitioner sought review of an order by a special
master, which included a finding that the evidence was insufficient to establish vaccine
causation. The order did not conclude the proceedings but rather provided the petitioner an
opportunity to adduce additional evidence. Id. at 203. The court held that “the [Vaccine] Act
does not provide for interlocutory appeals.” Id.

       Both Weiss and Spratling are consistent with the principle that this court’s jurisdiction
under the Vaccine Act attaches upon a petition for review of a special master’s final decision
regarding compensation. Both the Vaccine Act and the court’s Vaccine Rules provide that pre-
compensation proceedings are conducted by a special master, not the court. In pertinent part, 42
U.S.C. § 300aa-12(d) provides:

                  (1) Following the receipt and filing of a petition under section
               300aa-11 of this title, the clerk of the United States Court of Federal
               Claims shall forward the petition to the chief special master who
               shall designate a special master to carry out the functions authorized
               by paragraph (3).

               ...

                   (3)(A) A special master to whom a petition has been assigned shall
               issue a decision on such petition with respect to whether compensation
               is to be provided under the Program and the amount of such compensation.
               The decision of the special master shall —
                           (i) include findings of fact and conclusions of law, and
                          (ii) be issued as expeditiously as practicable but not later than
                       240 days, exclusive of suspended time under subparagraph (C),
                       after the date the petition as filed.
               The decision of the special master may be reviewed by the United States
               Court of Federal Claims in accordance with subsection (e) of this section.

42 U.S.C. § 300aa-12(d)(1), (3)(A) (emphasis added). Correlatively, Vaccine Rule 3 also
assigns special masters the responsibility to conduct proceedings:

                  (a) Case Assignment. After a petition has been filed with the
               clerk, the chief special master will assign the case to a special
               master to conduct proceedings in accordance with the Vaccine Rules




                                                 3
                  (b) Duties. The special master is responsible for:
                      (1)    conducting all proceedings, including taking such
                            evidence as may be appropriate, making the requisite
                            findings of fact and conclusions of law, preparing a
                            decision, and determining the amount of compensation,
                            if any, to be awarded . . . .

Vaccine Rule 3(a), (b)(1). The Weiss and Spratling decisions do not, however concern situations
in which a special master has issued a final decision, that decision has been reviewed and
overturned by a judge of this court, and subsequent actions by special masters are at issue.

        Under the court’s present practices, the clerk’s office does not assign a vaccine case to a
judge until a motion for review has been filed. Prior to that point, a vaccine case is assigned only
to a special master. See Vaccine Rule 26 (“After a motion for review has been filed with the
clerk, the case will be assigned to a judge of the Court of Federal Claims pursuant to RCFC
40.1.”). Once a vaccine case is assigned to a judge, however, that assigned judge retains the
assignment. See, e.g., Vaccine Rule 36, relating to relief from a judgment:

               Rule 36. Relief from a Judgment
               (a) In General. If, after the entry of judgment or the issuance
                   of an order concluding proceedings pursuant to Vaccine
                   Rule 10, 21, or 29, a party files a motion for reconsideration
                   pursuant to RCFC 59 or otherwise seeks relief from a judgment
                   or order pursuant to RCFC 60, the clerk will refer the motion
                   as follows:
                   (1) If the petition had previously been assigned to a judge
                        for review pursuant to Vaccine Rule 2[6], the clerk will
                       refer the motion to the assigned judge.
                  (2) If the petition had not previously been assigned to a
                       judge for review pursuant to Vaccine Rule 2[6], the clerk
                       will refer the motion to the assigned special master.

Vaccine Rule 36(a) (emphasis added). 2 Because the assignment to a judge, once made,
continues, this court retains jurisdiction over the case notwithstanding the remand and can




       2
          Before the adoption of Vaccine Rule 36, disparate decisions had been rendered over
whether a special master had inherent power to afford relief from a judgment where a petition for
review of a final decision had not been filed with the court. In Patton v. Secretary of Dep’t of
Health & Human Servs., 25 F.3d 1021 (Fed. Cir. 1994), the Federal Circuit ruled that the court
could entertain a motion for relief from judgment, id. at 1029, but that special masters had no
authority to correct decisions, absent delegation by the court to exercise such a power, id. at
1027; cf. Vessels v. Secretary of Dep’t of Health & Human Servs., 65 Fed. Cl. 563 (2005) (after
the adoption of Vaccine Rule 36, ruling that the court could review a special master’s grant of
relief from a judgment).


                                                 4
consider the pending petition for review. 3 Notably, any other result would be contrary to the
statutory grant of authority to the court in the Vaccine Act to “issue and enforce such orders as
the court deems necessary to assure the prompt payment of any compensation awarded.” 42
U.S.C. § 300aa-12(a).

                                          ANALYSIS

                          I. Whether the Time Limit is Mandatory

        Because the court possesses jurisdiction to hear petitioners’ motion for review, the salient
question becomes whether the 90-day time period for remand set forth in Subparagraph 300aa-
12(e)(2)(C) is mandatory, and not merely a time-related directive. The statutory provision states
in terse terms that “[t]he court may allow not more than 90 days for remands.” 42 U.S.C.
§ 300aa-12(e)(2)(C). Petitioners argue that this time limitation is absolute, and “[t]o interpret
the Act in any other way . . . would absolutely eviscerate the plain language of the Act itself.”
Hr’g Tr. 5:14-17. The government contends that the statutory language is merely a “time-related
directive” that is not mandatory because the Act does not specify any consequences for
contravening the 90-day deadline. Hr’g Tr. 21:8 to 22:10.

        The Supreme Court has observed that “if a statute does not specify a consequence for
noncompliance with statutory timing provisions, the federal courts will not in the ordinary course
impose their own coercive sanction.” United States v. James Daniel Good Real Prop., 510 U.S.
43, 63 (1993). This reluctance to imply a penalty where Congress has not explicitly included one
stems from “‘the great principle of public policy, applicable to all governments alike, which
forbids that the public interests should be prejudiced by the negligence of the officers or agents
to whose care they are confided.’” St. Regis Mohawk Tribe, New York v. Brock, 769 F.2d 37, 42
(2d Cir. 1985) (Friendly, J.) (quoting United States v. Nashville, C. & St. L. Ry., 118 U.S. 120,
125 (1886), and citing Guaranty Trust Co. v. United States, 304 U.S. 126, 132 (1938); Stanley v.
Schwalby, 147 U.S. 508, 515 (1893); and United States v. Thompson, 98 U.S. 486, 489 (1878)). 4

        In applying this principle, the Supreme Court has declined to find that an agency’s failure
to comply with a procedural deadline divested the agency of jurisdiction where the statute that
contained the deadline did not also include a consequence for failure to act within the specified
time. See Brock v. Pierce Cnty., 476 U.S. 253, 259 (1986). There, the Court noted that when
“there are less drastic remedies available for failure to meet a statutory deadline,” such as an

       3
         Respondent’s counsel indeed conceded that “this [c]ourt sits as a supervisory court over
these matters.” Hr’g Tr. 29:10-11. The dispute between the parties effectively is over the relief
requested, not juridical power. As respondent’s counsel put it, “at the end of the day, we do
agree with petitioner that the Court of Federal Claims has that oversight over the Special
Masters, but the type of relief that [p]etitioners request here, which is a decision, is not justified
by the circumstances in this case.” Hr’g Tr. 29:11-16.
       4
        In St. Regis Mohawk Tribe, Judge Friendly noted that the principle traces at least as far
back as French v. Edwards, 80 U.S. (13 Wall.) 506, 511 (1871). See St. Regis Mohawk Tribe,
769 F.2d at 41 n.4.


                                                   5
action under the Administrative Procedure Act (“APA”) to compel agency action unlawfully
withheld or unreasonably delayed, “courts should not assume that Congress intended the agency
to lose its power to act.” Id. at 260 & n.7; see 5 U.S.C. § 706(1); see also Barnhart v. Peabody
Coal Co., 537 U.S. 149, 158 (2003) (“Nor, since Brock, have we ever construed a provision that
the [g]overnment ‘shall’ act within a specified time, without more, as a jurisdictional limit
precluding action later.”).

        Similarly, in United States v. Montalvo-Murillo, 495 U.S. 711 (1990), the Supreme Court
relied on the general principle to interpret a section of the Bail Reform Act, Pub. L. 98-473, 98
Stat. 1976 (1984) (codified at 18 U.S.C. § 3142). The portion of the Act states: “The judicial
officer shall hold a hearing to determine whether any condition or combination of conditions . . .
will reasonably assure the appearance of [a detainee]. . . . The hearing shall be held immediately
upon the person’s first appearance before the judicial officer unless that person, or the attorney
for the [g]overnment, seeks a continuance.” 18 U.S.C. § 3142(f) (formerly 18 U.S.C. § 3142(e))
(emphasis added). The Court held that “the word ‘shall’ in the Act’s hearing time requirement
does not operate to bar all authority to seek pretrial detention once the time limit has passed.
Although the duty is mandatory, the sanction for breach is not loss of all later powers to act.”
Montalvo-Murillo, 495 U.S. at 718. As the Court explained, “We do not agree that we should, or
can, invent a remedy to satisfy some perceived need to coerce the courts and the [g]overnment
into complying with the statutory time limits,” noting that the “district court, the court of appeals,
and [the Supreme Court] remain open to order immediate release of anyone detained in violation
of [substantive provisions of] the statute.” Id. at 721.

        In several different statutory contexts, the Federal Circuit has provided an exhaustive
analysis of this principle. See, e.g., Hitachi Home Elecs. (Am.), Inc. v. United States, 661 F.3d
1343 (Fed. Cir. 2011); Gilda Indus., Inc. v. United States, 622 F.3d 1358 (Fed. Cir. 2010);
Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002). In doing so, it has
determined “that when Congress intends there to be consequences for noncompliance with
statutory deadlines for government action, it says so expressly.” Hitachi, 661 F.3d at 1347; see
also Gilda Indus., 622 F.3d at 1365 (“[A]bsence of a consequence indicates . . . that [a
subsection] is a directory provision and not ‘mandatory.’”). Accordingly, the Federal Circuit
determined that a statute stating that a “customs officer, within two years from the date a protest
was filed . . . , shall review the protest and shall allow or deny such protest in whole or in part,”
19 U.S.C. 1515(a), was merely directory and “[was] not enough to impose a specific penalty for
noncompliance” with the time directive, Hitachi, 661 F.3d at 1348.

        Like the statutes in the aforementioned cases, the Vaccine Act does not specify a
consequence for a special master’s failure to decide a case within 90 days of a remand issued by
this court. See 42 U.S.C. § 300aa-12(e)(2)(C). This terse deadline standing alone contrasts with
a provision contained within the Contract Disputes Act (“CDA”), 41 U.S.C. §§ 7101-09, another
statute familiar to this court. The CDA provides that a “contracting officer shall issue a decision
on any submitted claim of $100,000 or less within 60 days from the contracting officer's receipt
of a written request from the contractor that a decision be rendered within that period,” while a
“contracting officer shall, within 60 days of receipt of a submitted certified claim over $100,000
-- (A) issue a decision; or (B) notify the contractor of the time within which a decision will be
issued.” 41 U.S.C. § 7103(f)(1), (2). The statute proceeds to state that “[f]ailure by a contracting



                                                  6
officer to issue a decision on a claim within the required time period is deemed to be a decision
by the contracting officer denying the claim and authorizes an appeal or action on the claim as
otherwise provided in this chapter.” Id. § 7103(f)(5). There is no corollary to this direction in the
Vaccine Act, 5 and no provision contained within the Act supports petitioners’ contention that
this court must, upon a motion for review made after the 90-day time period for remand has
elapsed, exercise jurisdiction and enter its own entitlement determination. See H’rg Tr. 7:8 to
8:3. 6 In light of the great weight of Supreme Court and Federal Circuit precedent, the court
declines to read such a consequence into the Act.

                         II. The Nature of Another Available Remedy

        The court recognizes, as the Supreme Court did in Brock, that alternate avenues of relief
should be available when an agency or judicial body delays in taking action. See Brock, 476
U.S. at 260. What these remedies, in the context of the Vaccine Act, might entail is a question of
first impression for the court; however, potentially analogous sources of law are instructive in
determining the contours of the redress available when a special master’s decision is
unreasonably delayed. As noted previously, under the APA, a reviewing court has the power to
“compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). When
considering whether an agency’s delay is unreasonable, courts look to several indicia. “The first
and most important factor is that ‘the time agencies take to make decisions must be governed by
a “rule of reason.”’” In re Core Commc’ns., Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (quoting
Telecommunications Research and Action Ctr. v. Federal Commc’ns. Comm’n (“TRAC”), 750
F.2d 70, 80 (D.C. Cir. 1984)). The others are:

       (2) where Congress has provided a timetable or other indication of the
       speed with which it expects the agency to proceed in the enabling statute,
       that statutory scheme may supply content for this rule of reason; (3) delays
       that might be reasonable in the sphere of economic regulation are less

       5
         The government argues that the Vaccine Act is structured such that petitioners’ only
remedy is contained within Subsections 300aa-12(g) and 300aa-21(b). Hr’g Tr. 14:18-19, 26:13-
19. Those provisions allow petitioners to file notice of withdrawal of a petition if a special
master fails to render a decision within the 240 days prescribed by the Vaccine Act or if the
Court of Federal Claims fails to enter a judgment on the petition within 420 days after the date
on which the petition was filed. If the petitioner files such a notice to withdraw, the petitioner
preserves his or her right to file a civil action against a vaccine manufacturer or administrator.
See 42 U.S.C. § 300aa-11(a)(2)(A)(ii). The government’s reliance on these provisions is
misplaced. The cited provisions do not pertain to action by special masters on remand, and they
also are purely permissive on the part of petitioners.
       6
         The court recognizes it may be difficult for the special masters consistently to comply
with the 90-day directive in the statute. Cf. Wolfchild v. United States, 108 Fed. Cl. 578, 585-86
(2013) (recognizing the Department of the Interior’s “concern about completing its assigned task
in a period of potentially limited budgetary resources” and granting the Department an extension
of time to comply with a court order which had mandated completion of the Department’s task of
formulating a distribution plan for plaintiffs within one year, as a statute contemplated).


                                                 7
       tolerable when human health and welfare are at stake; (4) the court should
       consider the effect of expediting delayed action on agency activities of a
       higher or competing priority; (5) the court should also take into account
       the nature and extent of the interests prejudiced by delay; and (6) the court
       need not find any impropriety lurking behind agency lassitude in order to
       hold that agency action is unreasonably delayed.

In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (quoting
TRAC, 750 F.2d at 80) (internal quotations omitted); see also Independence Mining Co. v.
Babbitt, 105 F.3d 502, 507 n.7 (9th Cir. 1997).

         Courts have cautioned that a “rule of reason” connotes a fact-intensive “issue [that]
cannot be decided in the abstract, by reference to some number of months or years beyond which
agency inaction is presumed to be unlawful, but will depend in large part, as we have said, upon
the complexity of the task at hand, the significance (and permanence) of the outcome, and the
resources available to the agency.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336
F.3d 1094, 1102 (D.C. Cir. 2003). Thus, in Mashpee, the court of appeals determined that the
district court had erred in finding that the Bureau of Indian Affairs had delayed unreasonably in
issuing a decision on a petition for federal tribal recognizance that had been filed nearly six years
earlier, because it did not consider “competing priorities” and the Bureau’s limited resources.
Id. at 1101-02. 7 When a court does consider the totality of the circumstances, however,
unreasonable delay may be found. In Core Communications, the court found that the Federal
Communications Commission had unreasonably delayed action when it did not respond within
six years to the court’s remand ordering the Commission to articulate a valid legal justification
for its rules governing intercarrier compensation for telecommunications traffic bound for
Internet service providers. Core Commc’ns, 531 F.3d at 857-58, 861-62. In doing so, the court
noted the time period of the delay was “anything but reasonable” and that the petitioner had been
prejudiced by the delay. Id. at 857-58.

        A similar path exists to allow for the correction of unreasonable delay within the judicial
branch. Pursuant to the All Writs Act, “[t]he Supreme Court and all courts established by Act of
Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). Thus, courts of appeal have
jurisdiction to issue a writ of mandamus compelling action by a trial court. See In re Baldwin,
700 F.3d 122, 126 (3d Cir. 2012). Mandamus “is a ‘drastic and extraordinary’ remedy ‘reserved
for really extraordinary causes.’” Cheney v. United States Dist. Court for Dist. of Columbia, 542
U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-60 (1947)). To demonstrate
that such relief is appropriate, “a petitioner must establish that he or she has ‘no other adequate
means’ to obtain the relief requested, and that he or she has a ‘clear and indisputable’ right to
issuance of the writ.” In re Thomas, 438 Fed. Appx. 137, 138 (3d Cir. 2011) (quoting Madden v.

       7
         In Mashpee, although the Second Circuit reversed the district court’s finding of
unreasonable delay and remanded the case, the court of appeals “noted[d] that, if the district
court is unable to conclude that the delay to date is unreasonable, then it may nevertheless retain
jurisdiction over the case to monitor the agency’s assurances that it is proceeding as diligently as
possible with the resources available to it.” 336 F.3d at 1102.


                                                  8
Myers, 102 F.3d 74, 79 (3d Cir. 1996), superseded in part by 3d Cir. LAR 24.1(c) (1997)
(altering prisoner-account-statement procedure described in footnote 6 of Madden )); see also
Cheney, 542 U.S. at 380-81. Although lower courts generally have discretion with regard to
their dockets, “an appellate court may issue a writ of mandamus when an undue delay in
adjudication is ‘tantamount to a failure to exercise jurisdiction.’” In re Thomas, 438 Fed. Appx.
at 138 (quoting Madden, 102 F.3d at 79). For instance, a court of appeals issued a writ of
mandamus commanding a district court judge to act on a habeas corpus petition when the district
judge had “defer[red] action in petitioner’s habeas corpus case and in twenty-five other habeas
corpus actions pending before him[] to await a ruling by the Supreme Court in another case
which he does not even cite.” McClellan v. Young, 421 F.2d 690, 691 (6th Cir. 1970). Another
court of appeals found that a “fourteen-month delay in [a decision on a petition for a writ of
habeas corpus] for no reason other than docket congestion [was] impermissible” and issued a
writ of mandamus commanding the district court to decide the petition within 60 days. Johnson
v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990); cf. Madden, 102 F.3d at 79 (refusing to issue a
writ of mandamus because a district court’s delay of more than three months in responding to a
habeas petition was “of concern, [but] it [did] not yet rise to the level of a denial of due
process”).

        Petitions for writs of habeas corpus ask for relief from unlawful detention, and the
relevant statute states that courts hearing such petitions “shall summarily hear and determine the
facts, and dispose of the matter as law and justice require.” 28 U.S.C. § 2243. Contrastingly,
writs of mandamus to compel action on filings other than habeas petitions allow significantly
more time for lower courts to issue decisions, often finding that a district court’s inaction for
more than a year after filing does not warrant mandamus relief. See In re Mitchell, 340 Fed.
Appx. 787, 788 (3d Cir. 2009) (finding “no delay that would constitute an exceptional
circumstance” when actions were filed more than a year prior to petitioner’s mandamus request).

         Under the All Writs Act, 28 U.S.C. § 1651, this court has the power to issue a writ of
mandamus as necessary or appropriate in aid of its jurisdiction under the Vaccine Act. See
Phillips-Deloatch v. Secretary of Health and Human Servs., 104 Fed. Cl. 223, 225 (2012) (“This
court, of course, was established by an Act of Congress and thus may issue writs of mandamus in
aid of its jurisdiction under the Vaccine Act.”); see also Cox v. West, 149 F.3d 1360, 1363 (Fed.
Cir. 1998) (holding that Article I courts have the authority to issue writs of mandamus);
Branning v. United States, 11 Cl. Ct. 136, 138-39 (1986) (“This court is, of course, a court
established by act of Congress; and, accordingly, this court is authorized to issue such writs as
may be necessary or appropriate in aid of its jurisdiction.”). As discussed supra, mandamus is an
extraordinary remedy that can be issued when a lower court engages in undue delay, but only
when that delay is tantamount to a failure to exercise jurisdiction or extraordinary circumstances
are evident. See In re Thomas, 438 Fed. Appx. at 138 (quoting Madden, 102 F.3d at 79).

        In this instance, the case before the special master is complex, and although there is a
voluminous record, the court previously had concluded that on that record, it “is medically and
scientifically uncertain whether developmental progress or regress is a valid measure to assess
the pre-vaccination condition of a very young child with [petitioners’ minor child’s] type of
mitochondrial defect, or whether another indicator should be employed.” Paluck II, 104 Fed. Cl.
at 469. On remand, the special master asked the parties to further brief and report on related



                                                9
issues, activities that both parties agree did not conclude until September 2012. See Pet’rs’ Mot.
at 3; Resp’t’s Opp’n at 4. Approximately seven months have passed, then, since the special
master acquired information pertinent to the resolution of the case. This court would be loathe to
consider such a passage of time as undue delay tantamount to a failure to exercise jurisdiction on
the part of the special master.

        Although this court does not deem the special master to have engaged in undue delay, it
notes that the Federal Circuit has recognized the need for speedy disposition when a case has
been in contest for many years and a party’s health is quickly failing. See Dambach v. Gober,
223 F.3d 1376 (Fed. Cir. 2000). In Dambach, a veteran’s claim for benefits had “been in contest
for more than seven years” at the Board of Veterans’ Appeals, the Court of Appeals for Veterans
Claims, and the Federal Circuit. See Dambach, 223 F.3d at 1381. There, the Federal Circuit
stated “it would be appropriate for the Veterans Court to set a deadline by which this veteran’s
case will be concluded” in light of the length of the contest and “the fact that [Dambach’s] health
is very poor.” Id. In another instance, the Court of Appeals for Veterans Claims recognized that
an expedited decision from the Board of Veterans’ Appeals might be warranted because of
petitioner’s advanced age and frail health. See Thompson v. Principi, No. 02-291, 2002 WL
445057 (Ct. Vet. App. Mar. 14, 2002). 8 According to counsel for petitioners, the petitioners’
minor child, Karl Paluck, is in dire health. There is a “do not resuscitate order now in place” for
him, and “[h]e is bedridden or wheelchair-ridden[,] has a tracheostomy tube[,] and is on a
ventilator to breathe for him.” H’rg Tr. 34:20-22, 35:12-14. In addition, this case has been in
contest for six and one-half years. The totality of these circumstances supports prompt
completion of the remand ordered by this court more than a year ago. Thus, this court will
extend the time for completion of the remand by 120 days from the date of the issue of this order
and opinion, but no more.

                                         CONCLUSION

        Although petitioners’ motion for review is DENIED, the special master is instructed to
issue a decision on their entitlement claims not more than 120 days from the date of this order
and opinion.

       It is so ORDERED.

                                                  s/ Charles F. Lettow
                                                  Charles F. Lettow
                                                  Judge




       8
        The Board issued a decision thirteen days after the first decision of the Court of Appeals
for Veterans Claims, mooting the need for such a deadline. Thompson v. Principi, 18 Vet. App.
81 (Ct. Vet. App. 2002).


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