In the Um'ted States Court of Federal Claims

No. 17-104OV
Filed: Nlarch 29, 2019
Reissued for Publication: April 17, 20191

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TlFFANY S. GA|TER olblo and as next
friend of D.S.G., a minor,

PeHHonen
i_’_i;g §§ Petitioner; Vaccine

Act; Motion for Review;
Jurisdiction.

V.

SECRETARY OF HEALTH
AND HUMAN SERV|CES,

Defendant.

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Tiffany S. Gaiter, p_rg§_e, on behalf of D.S.G., a minor, Saginaw, l\/ll.

Heather L. Pearlman, Assistant Director, Torts Branch, Civil Division, United
States Department of Justice, Washington, D.C., for respondent With her Was Catherine
E. Reeves, Deputy Director, Torts Branch, Civil Division, C. Salvatore D’Alessio, Acting
Director, Torts Branch, and Joseph H. Hunt, Assistant Attorney General, Civil Division.

OP|N|ON

HORN, J.
FlNDlNGS OF FACT

On August 2, 2017, lVls. Gaiter filed a pg § petition on behalf of her minor son,
D.S.G., seeking compensation through the National Vaccine injury Compensation
Program, under the National Childhood Vaccine injury Act of 1986, 42 U.S.C. §§ 300aa-
1 to 300aa-34 (2012) (Vaccine Act). On l\/lay 22, 2002, l\/ls. Gaiter indicates that her son
received a first dose of the measles, mumps, and rubella (l\/ll\/lR) vaccine. “VVithin months”
of receiving the l\/lay 22, 2002 l\/ll\/lR vaccine, l\/ls. Gaiter alleges that her son, D.S.G., “lost
Words & failed to gain new ones, he stopped responding to his name & made minimal eye
contact all autism like symptoms."2

 

1 This Opinion Was issued under seal on l\/larch 29, 2019. The parties did not propose
any redactions to the l\/larch 29, 2019 Opinion, and the court, therefore, issues the Opinion
Without redactions for public distribution.

2 When quoting from documents filed by petitioner, the court has left petitioner’s
capitalization, choice of Words, spelling choices, grammatical choices, and fragments of
sentences unchanged from the quoted document.

 

An August 25, 2017 letter signed by Dr. Robert Thill, which was submitted to the
Special i\/laster by petitioner, states:

[D.S.G.] is currently under my medical care.

His vaccine dosing schedule is different from recommended schedule
because his parents chose to delay immunizations when [D.S.G.] was
young. Our office is now a mandatory vaccine office and we no longer allow
them to delay or refuse immunizations. Specifically the l\/il\/lR vaccine was
refused by mother for a few years despite our recommendation to receive
the l\/ll\/lR vaccine. This is why his immunizations have some large gaps in
time between them.

l\/ls. Gaiter states that, “[w]ith no new evidence against the i\/ll\/lR shot, l allowed my son
to recived the second ‘continued use dose’ of the shot (per the CDC)10 years later in July
2014.” l\/ls. Gaiter asserts that the July 2014 second dose i\/il\/lR vaccination aggravated
D.S.G.’s condition.

According to i\/ls. Gaiter’s petition:

Recently it was bought to my attention by Rep. Bill Posey of Florida(2015
hearing) that there lS link between African American males receiving the
l\/ll\/iR shot before 36 months developing autism like symptoms. A research
team headed by Dr. Destefano including Dr. Thompson of the CDC; which
under the US government jurisdiction informs & sets the guidelines for
vaccinations, knowinly withheld information from the African American
community for 6-7 years about the connection.

lVls. Gaiter attached to her petition a copy of an October 14, 2014 letter from Dr. Brian
Hooker, which also was signed by Dr. Andrew Wakefield and a lawyer named James
i\/loody, to the Centers for Disease Control (CDC) and the United States Department of
Health and Human Services. According to the October 14, 2014 letter, a research team
found “statistically significant associations between the age of first l\/li\/lR and autism in (a)
the entire autism cohort, (b) African-American children, and (c) children with ‘isolated’
autism.” The October 14, 2014 letter also accuses the CDC of “research misconduct"
involving “scientists working in the National immunization Program and the National
Center on Birth Defects and Developmental Disabiiities, right up to officials at the highest
levels of the CDC, including the Director.” in her petition, l\/ls. Gaiter argues:

The CDC failed to tell African Americans there was a link, no matter how
minor between African American American males who received the i\/ll\/iR
shot before 36 months of age and the development of autism like
symptoms. in short, the government withheld information which would
hinder my ability to make a sound and accurate decision for my child.

 

l\/ls. Gaiter’s son is African American and in her petition she seeks compensation of
$1,500,000.00.

On April 12, 2018, after lVls. Gaiter and the government both submitted briefs to
the Special i\/laster, the Special i\/laster assigned to lVls. Gaiter’s case, Special l\/laster
Brian Corcoran,3 issued an Order dismissing the petitioner’s claim related only to the first
dose of the l\/ll\/iR vaccine D.S.G. received in 2002.4 See Gaiter v. Sec’v of Health &
Human Servs., No. 17-1040V, 2018 WL 3030961 (Spec. i\/lstr. Fed. Cl. Apr. 12, 2018),
appeal dismissed, No. 2018-2172, 2018 WL 7051506 (Fed. Cir. Sept. 25, 2018). in the
April 12, 2018 Order, the Special i\/laster stated:

in this case, D.S.G. received the iVli\/lR vaccine on l\/lay 22, 2002. According
to Petitioner’s own statements, D.S.G. began to experience adverse
symptoms (including loss of language skills, reduced responsiveness, and
reduced eye contact) “within months” following his 2002 vaccination. The
majority of medical records filed to date, however, are from 2001 (pre~
vaccination), and discuss D.S.G.’s health history from early birth. Petitioner
filed no records related to the 2002 l\/ll\/lR vaccine (apart from the proof of
vaccination). The earliest filed record after the 2002 l\/ii\/lR vaccine (a 2004
speech and language therapy evaluation) indicates that as of September
20, 2004, D.S.G. was experiencing reduced expressive communication and
language skills, A school district psychological record from 2005 notes that
D.S.G. was exhibiting a developmental pattern consistent with autism at that
time. Subsequent records from 2006-2008 also indicate that D.S.G. had a
clinical history of autism for which treatment was being sought

Given all of the above, the available record best supports the conclusion
that D.S.G.’s symptoms developed at some point between September 2002
(two months post~vaccination) and September 2004 (the date of the
language therapy evaluation). Assuming the latter is the relevant onset,

 

3 The above-captioned case originally was assigned to Special l\/laster Christian J. l\/loran.
On January 18, 2018, the above-captioned case was reassigned to Special l\/laster
Corcoran.

4 The Special l\/laster’s April 12, 2018 Order originally was incorrectly docketed as a
“Decision.” The Special i\/laster directed the United States Court of Federal Claims Clerk’s
Office to strike the docket entry listing his filing as a “Decision” and instructed the Clerk’s
Office to redocket his April 12, 2018 Order as an “Order,” which the Clerk’s Office did on
April 12, 2018. Thereafter, the Special l\/laster held a status conference with iVls. Gaiter
and the government on l\/lay 2, 2018, prior to when l\/ls. Gaiter filed her June 25, 2018
“NGT|CE OF APPEAL.” Even if construed as a motion for review, the June 25, 2018
“NOT|CE OF APPEAL” was filed well beyond the thirty day time limitation for filing a
motion for review of the Special i\/laster’s April 12, 2018 Crder and the motion would have
been untimely. i\/loreover, i\/ls. Gaiter’s notice of appeal specifically states that she is
appealing the Special l\/laster’s “Grder Dissmusing 2002 Claim as untimely.”

3

 

Petitioner would have needed to file the claim no later than September
2007--over ten years ago. Petitioner’s claim is thus plainly time-barred.

g at *2 (internal references omitted).

Although l\/ls. Gaiter had argued before Special i\/laster Corcoran that the doctrine
of equitable tolling applied to her claim involving D.S.G.’s i\/ll\/lR vaccine in 2002, the
Special i\/laster determined that the doctrine of equitable tolling was inapplicable to l\/ls.
Gaiter’s claim involving the 2002 l\/ll\/lR vaccine. S_ee i_d_. The Special i\/laster stated:

While fraud may be acceptable grounds for equitable tolling, the facts of this
c_a_s_e do not suggest that fraud occurred. Similar cases alleging fraudulent
concealment of information by the CDC have been repeatedly dismissed as
unpersuasive with regard to the tolling argument See, e.q., Krenik v. Sec’v
of Health & Human Servs., No. 03-2755V, 2014 WL 4387219, at *9 (Fed.
Cl. Spec. i\/lstr. July 25, 2014). in addition, even if concealment had
occurred, Petitioner has not demonstrated that she relied upon it in failing
to prosecute this claim sooner.

 

 

§ (emphasis in original). The Special Master, therefore, dismissed l\/ls. Gaiter’s claim
regarding the 2002 vaccine received by D.S.G. because l\/ls. Gaiter did not file her petition
regarding the 2002 vaccine within the thirty-six month statute of limitations period
prescribed by the Vaocine Act. §§§ id_.

On l\/lay 2, 2018, the Special i\/laster held a status conference with i\/ls. Gaiter and
the government, and, that same day, issued an Order directing i\/ls. Gaiter “to show cause
why her significant aggravation claim [involving the 2014 l\/li\/lR vaccine D.S.G. received]
should not be dismissed” on or before June 22, 2018. On June 11, 2018, l\/ls. Gaiterfiled
a response to the Special l\/laster’s Order directing i\/ls. Gaiter to show cause why her
claim involving the 2014 i\/li\/lR vaccination should not be dismissed, in which l\/ls. Gaiter
argued that “due to your [the Special i\/laster’s] jaded views on cases involving the l\/ll\/lR
vaccine and autism; my case is ‘dead in the water’ under your review.”

On June 25, 2018, i\/ls. Gaiter filed a document titled “NOTICE OF APPEAL,” which
stated that l\/ls. Gaiter was providing “[n]otice” of an “appeal to the United States Court of
Appeals for the Federal Circuit from the Order Dissmusing 2002 Claim as untimely.”
(capitalization in original). ln her notice of appeal, i\/ls. Gaiter included the Special
i\/laster’s April 12, 2018 Order dismissing l\/ls. Gaiter’s claim involving the l\/li\/lR vaccine
D.S.G. received in 2002, as well as i\/ls. Gaiter’s June 11, 2018 response to the Special
l\/laster’s l\/lay 2, 2018 Order to show cause.

On July 6, 2018, the Special l\/laster issued a Decision addressing i\/ls. Gaiter’s
petition and her claim involving the l\/li\/lR vaccination D.S.G. received in 2014. S_e_e_ Gaiter
v. Sec’v of Health & Human Servs., No. 17-1040V, 2018 WL 3991229 (Spec. i\/lstr. Fed.
Cl. July 6, 2018). The Special i\/laster stated that “there is a lack of record evidence (as

 

 

well as treater statements) supporting the conclusion that D.S.G.’s autism was made
worse by his 2014 i\/li\/lR vaccine.” § at *3. According to the Special l\/laster;

Furthermore, the decision to deny compensation in claims alleging a
significant aggravation of autism following the receipt of a vaccination is
consistent with prior decisions of other special masters. B, e_.g_., Hooker
v. Sec’v of Health & Human Servs., No. 02-472V, 2016 WL 3456435, at *45
(Fed. Cl. Spec. l\/istr. lV|ay 19, 2016) (causation theory relating to a
significant aggravation of an existing autism diagnosis was “not at all
persuasive”); Lonq v. Sec’v of Health & Human Servs., No. 08-792V, 2015
WL 1011740, at *18 (Fed. Cl. Spec. l\/lstr. Feb. 9, 2015) (petitioner did not
suffer from a vaccine-induced significant aggravation of an existing autism
diagnosis where “worsening [of symptoms] seem[ed] likely to have been the
result of the normal course of autism”); Richard v. Sec’v of Health & Human
Servs., No. 02-877V, 2010 WL 2766742, at *5 (Fed. Cl. Spec. l\/lstr. l\/lay 3,
2010) (petitioners “failed to present . . . facts that plausibly suggest[ed]” a
worsening of an existing autism diagnosis) (internal quotation marks
omitted)). As noted above, Petitioner has offered no evidence distinguishing
the present matter from cases decided under similar circumstances, despite
my allowing her the opportunity to do so.

g (alterations in original). The Special l\/laster, therefore, dismissed i\/ls. Gaiter’s petition.
§§§ id_. The Special l\/laster also indicated in the July 6, 2018 Decision that, “[i]n the
absence of a timely-filed motion for review (see Appendix B to the Rules of the Court),”
the Clerk of the United States Court of Federal Claims shall enter judgment g Neither
party filed a motion for review, and the Clerk of the United States Court of Federal Claims
entered judgment dismissing l\/ls. Gaiter’s petition on August 9, 2018.

On July 13, 2018, the Clerk’s Office for the United States Court of Federal Claims
transmitted i\/is. Gaiter’s June 25, 2018 notice of appeal to the United States Court of
Appeals for the Federal Circuit, although judgment had not yet been entered by the Clerk
of the United States Court of Federal Claims. On July 20, 2018, the Federal Circuit
docketed l\/ls. Gaiter’s appeal. On August 23, 2018, the government filed a motion to
dismiss l\/ls. Gaiter’s appeal for lack of jurisdiction because l\/is. Gaiter had not filed a
motion for review with the United States Court of Federal Claims before filing her June
25, 2018 notice of appeal. On August 24, 2018, i\/ls. Gaiter filed her corrected opening
brief in the United States Court of Appeals forthe Federal Circuit.5

On September 25, 2018, the United States Court of Appeals forthe Federal Circuit
issued an Order, issued as a mandate, addressing the government’s August 23, 2018
motion to dismiss. See Gaiter v. Sec’v of Health & Human Servs., No. 2018-2172, 2018

 

5 On August 1, 2018, i\/ls. Gaiter had attempted to file her opening brief, which the Federal
Circuit had rejected as being non-compliant because the opening brief was not signed,
was not complete, and contained unredacted personally identifiable information.

5

 

WL 7051506 (Fed. Cir. Sept. 25, 2018). in the Federal Circuit’s September 25, 2018
Grder, the Federal Circuit stated:

We agree with the Secretary that under these circumstances this court
cannot reach the merits of the special master’s decisions As the Secretary
correctly notes, the statutory scheme governing Vaccine Act cases “makes
appeal to the Court of Federal Claims a prerequisite for appeal to this court.”
Grimes v. Sec’v of Health & Human Servs., 988 F.2d 1196, 1198 (Fed. Cir.
1993); see also l\/lahaffev v. Sec’v of Dep’t of Health & Human Servs., 368
F.3d 1378, 1382-83 (Fed. Cir. 2004) (reaffirming Grimes). And here, l\/ls.
Gaiter is seeking this court’s direct review of the special master’s decisions.

While we may not review the merits of the appellants’ case under the current
procedural posture, it is possible that i\/ls. Gaiter’s notice of appeal filed at
the Claims Court could be construed as a premature request for the Claims
Court to review the special master’s decision that ripened upon the special
master’s decision finally disposing of the case or alternatively that it would
be in the interest of justice for the Claims Court to consider the merits of the
special master’s decisions See Greenberq v. Sec’v of Health & Human
Servs., 646 F. App’x 985, 988 (Fed. Cir. 2016). This court therefore
remands to the Claims Court to consider l\/is. Gaiter’s submission.

 

ld_.at*i.

Although the Federal Circuit’s September 25, 2018 Order was issued as a
mandate and remanded the above-captioned case to the United States Court of Federal
Claims, unfortunately, not until December 12, 2018, did the Clerk’s Office of the United
States Court of Federal Claims refile l\/ls. Gaiter’s June 25, 2018 notice of appeal as a
motion for review “pursuant to the Court of Appeals for the Federal Circuit’s l\/landate of
September 25, 2018.” Thereafter, on the same day, the Clerk’s Office assigned above-
captioned case to the undersigned On December 13, 2018, the undersigned issued an
Order reflecting the unexplained gap in time between the Federal Circuit’s September 25,
2018 Order and the December 12, 2018 notice of assignment and directed the
government to respond to i\/ls. Gaiter’s notice of appeal that had been redocketed as a
motion for review.

On January 10, 2019, the government filed a response to i\/ls. Gaiter’s motion for
review, which argued that i\/ls. Gaiter’s motion for review should be dismissed for lack of
jurisdiction. According to the governmentl the statutes governing this court’s jurisdiction
over motions for review provide that this court only may review a “Decision” of a Special
i\/laster, not an “Order” of a Special i\/laster that does not entirely resolve a petition, and
that a motion of review must be filed within thirty days of the Special l\/laster’s “Decision.”
Th'e government argues that, if this court does have jurisdiction, the court should reject
i\/ls. Gaiter’s motion for review because the Special l\/laster’s April 12, 2018 Order and
July 6, 2018 Decision “were supported by the record and in accordance with law.” On

 

January 28, 2019, l\/ls. Gaiter filed a reply in support of her motion for review, in which
she argued that the Special l\/laster abused his discretion when he dismissed her petition.

DlSCUSS|ON

The Federal Circuit’s September 25, 2018 Order, issued as a mandate, directed
this court to determine whether “it is possible that i\/ls. Gaiter’s notice of appeal filed at the
Claims Court could be construed as a premature request for the Claims Court to review
the special master’s decision that ripened upon the special master’s decision finally
disposing of the case.” Gaiter v. Sec’v of Health & Human Servs., 2018 WL 7051506, at
*1. The parties currently before this court, however, dispute whether this court can review
i\/ls. Gaiter’s June 25, 2018 notice of appeal, which the United States Court of Federal
Claims Clerk’s Office subsequently redocketed as a motion for review. i\/is. Gaiter argues:

 

[A]ccording to App. [Appendix] B Rule 32. Notice of Appeal To appeal a
decision of the Court of Federal Claims, a party must file a notice of appeal
with the clerk of the United States Court of Appeals for the Federal Circuit
(i.e., a petition for re view under 42 U.S.C. § 300aa-12(f)) within 60 days
after the date of the entry ofjudgment.

i\/ls. Gaiter asserts “i was instructed by the Special l\/laster when my son’s case was done,
not certain sections l had the right to appeal and l would be given a timeframe by the
court.” According to i\/ls. Gaiter’s reply in support of the motion for review, “l do not feel
my case should be dismissed as l have and ALWAYS will, answer, pay every fee and
accept every phone call.”

Defendant, however, argues that the court does not have jurisdiction in the above-
captioned case, and that the “petitioner’s premature appeal of the [Special i\/laster’s] April
Order is insufficient to invoke this Court’s review.” Defendant contends that the statutory
provisions relevant to cases under the Vaccine Act “make two things clear: that only a
‘decision’ is subject to review by this Court, and that the 150-day appeal period commences
‘upon issuance of the special master’s decision.’ Regarding the first issue, this Court has
previously concluded that an order is insufficient to invoke this Court’s jurisdiction.”
Defendant argues that permitting i\/ls. Gaiter’s June 25, 2018 notice of appeal of the
Special i\/laster’s April 12, 2018 Order regarding D.S.G,’s first dose of the i\/ilVlR vaccine
in 2002'to serve as a motion for review of the Special l\/iaster’s subsequent July 6, 2018
Decision on the case as a whole “could potentially result in the untenable practice of
allowing a ‘place holder appeal’ to be filed at any point in any case. Such an outcome is
clearly contrary to the plain language of the [Vaccine] Act.”

Under the Vaccine Act, a Special i\/laster “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.” 42 U.S.C. § 300aa-
12(d)(3)(A) (2018). Rule 10 (2018) of the Vaccine Rules of the United States Court of
Federal Claims (Vaccine Rules), which is titled “Decision of the Special l\/iaster,” similarly
indicates that a Special i\/iaster “will issue a decision on the petition with respect to

 

whether an award of compensation is to be made and, if so, the amount thereof.” Vaccine
Rule 10(a).

The Special i\/laster’s “decision” then “may be reviewed by the United States Court
of Federal Claims in accordance with subsection (e).” 42 U.S.C. § 300aa-12(d)(3)(A). The
statute at 42 U.S.C. § 300aa-12(e) (2018) states:

(1) Upon 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, if such a motion is filed, the
other party shall file a response with the clerk of the United States Court of
Federal Claims no later than 30 days after the filing of such motion.

(2) Upon the filing ofa motion under paragraph (1) with respect to a petition,
the United States Court of Federal Claims shall have jurisdiction to
undertake a review of the record of the proceedings and may thereafter--

(A) uphold the findings of fact and conclusions of law of the special
master and sustain the special master’s decision,

(B) set aside any findings of fact or conclusion of law of the special
master found to be arbitrary, capricious an abuse of discretion, or
othen/vise not in accordance with law and issue its own findings of
fact and conclusions of law, or

(C) remand the petition to the special master for further action in
accordance with the court’s direction.

42 U.S.C. § 300aa-12(e)(1)-(2); §§ W Vaccine Rule 23(a) (2018) (“To obtain review of
the special master’s decision, a party must file a motion for review with the clerk within 30
days after the date the decision is filed.”). Vaccine Rule 23(b) states that no extensions
of time in which to file a motion for review may be granted, and that “the failure of a party
to file a motion for review in a timely manner will constitute a waiver of the right to obtain
review.” Vaccine Rule 23(b). The legislative history of the Vaccine Act states: “The
conferees have provided for a limited standard for appeal from the [special] master’s
decision and do not intend that this procedure be used frequently, but rather in those
cases in which a truly arbitrary decision has been made." H.R. Rep. No. 101-386, at 517
(1989) (Conf. Rep_), reprinted i_n_ 1989 U.S.C.C.A.N. 3018, 3120.

if neither party files a motion for review in accordance with the rules articulated
above, the Clerk of the United States Court of Federal Claims shall enter judgment in
accordance with the Special i\/laster’s Decision. 42 U.S.C. § 300aa-12(e)(3); _s_e§ W
Vaccine Ruie 11 (2018). lf, however, a motion for review is'timely filed with the United
States Court of Federal Claims, a judge of the United States Court of Federal Claims will
review the motion for review, and the “findings of fact and conclusions of law of the United
States Court of Federal Claims on a petition shall be final determinations of the matters

 

involved." 42 U.S.C. § 300aa-12(f) (2018); g §l_s_p Vaccine Rules 26-27 (2018). The
Clerk of the United States Court of Federal Claims will enterjudgment in accordance with
the judge’s “decision on review.” Vaccine Rule 30(a) (2018). Only then may the parties
obtain review of the United States Court of Federal Claims’ “judgment” by filing a “petition”
with the United States Court of Appeals for the Federal Circuit within sixty days of‘ ‘the
date ofjudgment.” 42 U.S.C. § 300aa-12(f); Ye §j§p Vaccine Ruie 32 (2018) (stating that
a party may appeal a Decision of the United States Court of Federal Claims by filing a
notice of appeal with the United States Court of Appeals for the Federal Circuit within

sixty days of the entry of judgment).

in the context of a motion for review, the jurisdiction of the United States Court of
Federal Claims “is limited to reviewing decisions of the special master.” _S___ee L______emire v.
Secv of Health & Human Servs. 60 Fed. Cl. 75, 79 (2004) (citing Spratling v Sec’y of
Health & Human Servs., 37 Fed. Cl. 202, 203 (1997)). “The trigger for ourjurisdiction is
thus the issuance of a ‘decision on [the vaccine act] petition,’ which the act indicates
resolves the question of ‘whether compensation is to be provided’ and, if so, ‘the amount
of such compensation.”’ J.T. v. Sec’v of Health & Human Servs., 125 Fed. Cl. 164, 166
(2016) (alteration in original) (quoting 42 U.S.C. § 300aa-12(d)(3)(A)); § Weiss v. Sec’y
of Health & Human Servs., 59 Fed. Cl. 624, 626 (2004) (citing Widdoss v. Sec’v of Health
& Human Servs., 989 F.2d 1170, 1175 (Fed. Cir.), pelt denied, 510 U.S. 944 (1993));
see also Vessels v. Sec’v of Health & Human Servs., 65 Fed. Cl. 563, 567 (2005)
(“Lemire, Weiss and Spratlinq are all in accord with the principle that this Court’s Vaccine
Act jurisdiction extends only to the special masters’ final decisions regarding
compensation. ’.) Judges of the United States Court of Federal Claims have explained
that reviewing a Special i\/laster’s “interim” Order “would unduly interfere with the special
master’s duties” and “would make vaccine proceedings subject to time-consuming
interruptions and piecemeal appellate review.” See Spratlinq v. Sec’v of Health & Human
Servs., 37 Fed. Cl. at 203; see also Warfle ex rel. Guffev v. Sec’v of Health & Human
Servs., 92 Fed. Cl. 361, 364 (2010) (determining that the review of a Special i\/iaster’s
“interim orders” “would open the door to a variety of piecemeal appeals a development
that plainly would encroach upon the Special l\/lasters’ ability to manage efficiently their
substantial caseloads” (citing Firestone Tire & Rubber Co. v. Risiord, 449 U.S. 368, 374
(1981))).

 

 

in Weiss v. Secretarv of Health & Human Services, a judge of the United States
Court of Federal Claims addressed whether she could review a Special i\/laster’s Order,
in which the Special i\/laster determined that a proffered expert was not qualified to give
a neurological diagnosis and dismissed one of the petitioner’s three claims pending
before the Special l\/iaster. Weiss v. Sec’v of Health & Human Servs., 59 Fed. Cl. at 625.
The Weiss court stated that “the statute contemplates that a ‘decision’ by a special master
will resolve the ultimate issues in the case, including whether compensation is appropriate
and if it is, its quantum.” LCL at 626 (citing Widdoss v. Sec’v of Health & Human Servs.,
989 F.2d at 1175). According to the Weiss court, “there could be no entry ofjudgment in
the instant case because there are alternate claims of a Table measles infection and
autism pending, and the special master has not yet determined whether petitioners are
entitled to compensation or, if so, in what amount.” g Because the Special l\/laster’s

 

 

Order regarding the proffered expert and one of the petitioner’s three claims was not a
final Decision, the Weiss court concluded that it lacked jurisdiction over the motion for
review filed in that case, as “there is no basis in the Vaccine Act, the Rules of the Court
of Federal Claims or the Vaccine Rules to warrant the Court’s review ofthis interim ruling.”
g at 627; see also J.T. v. Sec’v of Health & Human Servs., 125 Fed. Cl. at 167 (stating
that a motion for review of a Special l\/iaster’s Order did not “trigger” the United States
Court of Federal Claims’ jurisdiction when “[c]ompensation for the vaccine injury has not
yet been awarded nor has quantum been established”); Lemire v. Sec’v of Health &
Human Servs., 60 Fed. Cl. at 80 (finding that the United States Court of Federal Claims
lacked jurisdiction over a Special i\/iaster’s Order because the Order was not a final
Decision indicating whether compensation wasto be awarded and the amount of such
compensation if awarded); Spratlinq v. Sec’v of Health & Human Servs., 37 Fed. Cl. at
203 (concluding that the United States Court of Federal Claims lacked jurisdiction over a
motion for review when the Special i\/laster had not yet issued a final Decision on the
petition).

 

in the above-captioned case, i\/ls. Gaiter filed a petition on behalf of D,S.G.
asserting a right to compensation as a result ofthe i\/ll\/lR vaccine D.S.G. received in 2002,
as well as the i\/ll\/lR vaccine D.S.G. received in 2014, which l\/ls. Gaiter asserts
aggravated D.S.G.’s condition. ln the Special l\/laster’s April 12, 2018 Order, the Special
iVlaster first dismissed l\/ls. Gaiter’s claim involving the l\/li\/lR vaccine D.S.G. received in
2002 because the 2002 claim was not timely filed within the statute of limitations
prescribed by the Vaccine Act. Gaiter v. Sec’v of Health & Human Servs., 2018 WL
3030961, at *2. The Special l\/laster’s April 12, 2018 Order, however, did not address the
merits of i\/ls. Gaiter’s claim involving the l\/li\/lR vaccine D.S.G. received in 2014 or
indicate that the Special i\/laster was dismissing that claim or the case as a whole. w §
lndeed, the Special i\/laster’s April 12, 2018 Order specifically is titled “ORDER
DlSi\/llSSiNG 2002 CLAll\/l AS UNTll\/lELY,” which constituted only a portion of the claims
in l\/ls. Gaiter’s petition. (capitalization in original). l\/ioreover, the Special l\/laster did not
indicate in the April 12, 2018 Order that l\/ls. Gaiter had a right to seek review of the
Special l\/laster’s April 12, 2018 Order in the United States Court of Federal Claims or the
United States Court of Appeals for the Federal Circuit. _S_ee jg;

On l\/lay 2, 2018, the Special i\/laster held a status conference with the parties and,
that same day, issued an Order stating that “the status conference was held to discuss
procedural and substantive issues relating to her [l\/ls. Gaiter’s] remaining significant
aggravation claim,” regarding the second l\/ll\/lR vaccine received by D.S.G. in 2014. The
Special i\/laster’s May 2, 2018 Order instructed l\/ls. Gaiter to file a “brief showing cause
why her significant aggravation claim should not be dismissed due to a lack of reasonable
basis,” which i\/ls. Gaiter filed on June 11, 2018. in lVis. Gaiter’s June 11, 2018 filing, lVis.
Gaiter asserted “i am ready for yourjudgment, so l can start the appeals process Perhaps
that is God’s way of guiding my case to someone’s ‘stack’ who is unjaded enough to read
it.”

On June 25, 2018, before the Special i\/laster issued a Decision regarding i\/ls.
Gaiter’s claim involving D.S.G.’s 2014 l\/ll\/lR vaccine and before the Special l\/iaster made

10

 

a final ruling as to the merits of l\/ls. Gaiter’s petition, l\/ls. Gaiter filed a notice of appeal,
which indicated that l\/ls. Gaiter was appealing the Special i\/laster’s April 12, 2018 Order,
Subsequently, on July 6, 2018, the Special l\/laster issued a Decision dismissing l\/is.
Gaiter’s entire petition and addressing the 2014 l\/li\/lR vaccine D.S.G. received. §_e_e
Gaiter v. Sec’v of Health & Human Servs., 2018 WL 3991229, at *3. The Special i\/laster’s
July 6, 2018 Decision stated:

 

The theory that vaccines can cause autism or developmental injuries (in the
absence of proof of encephalopathy) have rarely been successful; l find no
compelling reason here to diverge from those holdings as Petitioner has
not offered evidence showing why D.S.G.’s case is different from those
already decidedl nor has she suggested a novel theory not previously
considered l\/loreover, there is a lack of record evidence (as well as treater
statements) supporting the conclusion that D.S.G.’s autism was made
worse by his 2014 iVll\/lR vaccine.

§ The Special l\/laster also stated that, “[i]n the absence of a timely-filed motion for review
(see Appendix B to the Rules of the Court),” the Clerk of the United States Court of
Federal Claims shall enterjudgment. l_c_l_. On August 9, 2018, the Clerk ofthe Court entered
judgment dismissing the above-captioned case “pursuant to Vaccine Rule 11(a).”

Because the Special i\/laster’s April 12, 2018 Order only dismissed a portion of the
petitioner’s claims for compensation, as in Weiss the April 12, 2018 Order left open the
possibility of compensation under petitioner’s other claim involving the 2014 lVii\/iR vaccine
D.S.G. received, which, as oprril 12, 2018, remained pending before the Special l\/laster.
The Special l\/laster’s April 12, 2018 Order was not a “Decision” subject to review in the
United States Court of Federal Claims because the April 12, 2018 Order did not did not
determine “whether compensation is to be provided under the Program and the amount
of such compensation.” B 42 U.S.C. § 300aa-12(d)(3)(A); §§ Is_g Vaccine Rule 10(a).
Thus, when l\/ls. Gaiter filed her June 25, 2018 notice of appeal of the Special l\/laster’s
April 12, 2018 Order, the Special l\/laster had not yet entered a “Decision” that was subject
to review under 42 U.S.C. § 300aa-12(e)(1)-(2) or Vaccine Rule 23(a). Because the
Special i\/laster had not yet issued a Decision when l\/ls. Gaiter filed her June 25, 2018
notice of appeal, the court lacks jurisdiction over i\/ls. Gaiter’s notice of appeal, even if
construed retroactively titled as a motion for review. The case law discussed above has
consistently indicated; and is supported by the text of the Vaccine Act, that this court does
not have jurisdiction over a motion for review involving a Special i\/laster’s Order that does
not determine whether compensation is to be provided and, if compensation is to be
providedl the amount of such compensation.

 

The Special i\/laster did, however, issue a Decision dismissing l\/is. Gaiter’s petition
on July 6, 2018. As noted above, Vaccine Rule 23 requires that a party seeking review of
a Special l\/laster’s Decision file a motion for review within thirty days of when the Decision
is filed, and states that “[n]o extensions of time will be permitted under this rule and the
failure of a party to file a motion for review in a timely manner will constitute a waiver of
the right to obtain review.” Vaccine Rule 23(a)-(b); see Betancourt v. Sec’v of Health &

11

 

Human Servs., 81 Fed. Cl. 447, 448 (2008) (“[G]iven that the time period to file the motion
for review is statutorily mandated, the Court would not be in a position to grant an
extension or otherwise waive the time limitation, were plaintiff to request such action.”
(citations omitted)). The docket in the above-captioned case indicates that, after the
Special l\/laster issued his July 6, 2018 dismissing l\/ls. Gaiter’s petition, l\/ls. Gaiter did not
file any documents during the statutory thirty-day time period with the United States Court
of Federal Claims let alone a document which this court could construe as a motion for
review. There is nothing on the docket in this case in the thirty days following the Special
i\/laster’s July 6, 2018 Decision that could be used to satisfy the requirement of filing a
motion for review under Vaccine Rule 23. The lack of a filing by l\/ls. Gaiter after the
Special i\/laster issued his July 6, 2018 Decision is reflected in the August 9, 2018
judgment entered by the Clerk of the United States Court of Federal Claims pursuant to
Vaccine Rule 11(a), which states “[i]f a motion for review under Vaccine Rule 23 is not
filed within 30 days after either the filing of the special master’s decision under Vaccine
Rule 10 or the entry of an order of dismissal under Vaccine Rule 21 (b), the clerk will enter
judgment immediately.” §§§ Vaccine Rule 11(a), Even given i\/ls. Gaiter’s pg _s§ status
and the possible confusion she may have been under that she had already filed an
appeal, there does not appear to be a mechanism in the statutory framework of the
Vaccine Act or the Vaccine Rules which would permit the “ripen[ing]” of a premature
motion for review involving an interim Order, over which this court lacks jurisdiction, into
a jurisdictionally sound, timely motion for review upon the issuance of a Special i\/laster’s
Decision.6 Perhaps in the future in a similar situation, particularly in p_rp_s§ cases the final
Decision could emphasize the need to file a motion for review in this court after the
Decision has been issued, notwithstanding that the petitioner previously incorrectly had
filed a “NOT|CE OF Ai:’l:’EAL.”7

in its September 25, 2018 Order, the United States Court of Appeals for the
Federal Circuit also directed that the court review, “alternatively,” whether “it would be in
the interest of justice for the Claims Court to consider the merits of the special master’s
decisions,” and cited Greenberq v. Secretarv of Health & Human Services 646 F. App’x

 

6 l\/ioreover, the court notes that the Special l\/laster’s conclusions regarding l\/ls. Gaiter’s
two claims are supported by the evidence in the record presented by petitioner and by
law. i\/ls, Gaiter, following the onset of D.S.G.’s autism after receiving the 2002 first dose
i\/ll\/lR vaccine, did not file a petition within the thirty-six month statute of limitations
prescribed by the Vaccine Act, and the doctrine of equitable tolling does not apply in the
above-captioned case. Regarding i\/ls. Gaiter’s claim involving the 2014 l\/ll\/lR vaccine
received by D.S.G., the record before the court indicates that the Special i\/laster correctly
concluded that i\/ls. Gaiter had not supported her claim that the 2014 l\/li\/lR vaccine
significantly aggravated D.S.G.’s condition.

7 Although the Special i\/laster’s July 6, 2018 Order did state that, in the absence of a
timely filed motion for review, the Clerk of the United States Court of Federal Claims would
enter judgment, the Special l\/laster’s July 6, 2018 Order did not address l\/ls. Gaiter’s
June 25, 2018 notice of appeal to the United States Court of Appeals for the Federal
Circuit. The docket in the above-captioned case also indicates that the Special i\/laster
did not issue an Order regarding l\/ls. Gaiter’s June 25, 2018 notice of appeal.

12

 

985, an unpublished Federal Circuit Opinion. See Gaiter v. Sec’v of Health & Human
Servs., 2018 WL 7051506, at *3. in Greenberg, the Greenbergs had filed a petition on
behalf of a child alleging that the child’s autism had been caused by an l\/il\/lR vaccine.
Greenberq v. Sec’v of Health & Human Servs., 646 F. App’x at 986. On December 8,
2014, a Special i\/laster issued a Decision dismissing the Greenbergs’ petition. §_e_§ § at
987. The Greenbergs did not file a motion for review within the thirty-day time period for
filing such a motion. §e§ § On February 3, 2015, however, the Greenbergs moved for
reconsideration of the Special l\/laster’s December 8, 2014 Decision, which, thereafter,
the Special i\/laster denied on l\/larch 20, 2015. § § at 988.

Prior to the Special i\/laster’s l\/larch 20, 2015 denial of the Greenbergs’ motion for
reconsideration, however, the Greenbergs filed a “‘Notice of Review”’ with the United
States Court of Appeals for the Federal Circuit on l\/larch 12, 2015. § According to the
Federal Circuit:

On June 10, 2015, we concluded that we lacked jurisdiction [over the
Greenbergs’ i\/larch 12, 2015 appeal], because our jurisdiction does not
encompass direct review of special masters’ decisions §e_e Grimes v. Sec’y
of Dep’t of Health & Human Servs., 988 F.2d 1196, 1198 (Fed. Cir. 1993).
We transferred the Greenbergs’ notice of review to the Court of Federal
Claims in part-not for review by that court of the January 2015 judgment
(time had run out on obtaining any such review), but for possible review of
the special master’s l\/larch 2015 order denying reconsideration.

The Court of Federal Claims acting “in the interest of justice,” reviewed and
affirmed the special master’s order refusing reconsideration as not
“arbitrary, capricious an abuse of discretion, or othen/vise not in accordance
with law.” Greenberq v. Sec’v of Health & Human Servs., No. 08-24V, 2015
WL 6684703, at *2-3 (Fed. Cl. Nov. 2, 2015).

 

Greenberq v. Sec’v of Health & Human Servs., 646 F. App’x at 988 (internal reference
omitted). Specifically, the United States Court of Federal Claims in an unpublished
Opinion, stated:

Rule 36 applies the guidelines of our Court Rules 59 and 60 in assessing a
motion for relief from a judgment. However, as noted by the Special i\/laster,
the relief provided in Vaccine Rule 36 is not intended as a substitute for
appeal. Vessels v. HHS, 65 Fed. Cl. 563, 569 (2005), Lemire v. HHS, 60
Fed. Cl. 75, 78 (2004). Nevertheless, this Courtwill, in the interest ofjustice,
undertake a review of the Reconsideration Order using the guidelines of
Vaccine Rule 36(b)(7), which provide that “the assigned judge may set
aside the ruling only if it is found to be arbitrary, capricious an abuse of
discretion, or othenNise not in accordance with law.”

Greenberq v. Sec’v of Health & Human Servs., 2015 WL 6684703, at *2.

13

 

The above-captioned case, however, does not involve a motion for relief from a
judgment under Vaccine Rule 36 (2018),8 and neither the Federal Circuit’s unpublished
Opinion in Greenberg or the United States Court of Federal Claims’ unpublished Opinion
in Greenberg address the filing of a premature notice of appeal of a Special i\/laster’s
interim Order. As discussed abovel the court lacks jurisdiction over l\/ls. Gaiter’s June 25,
2018 notice of appeal because the notice of appeal, whether construed as a notice of
appeal or a motion for review, did not seek review of a Decision by a Special i\/laster.
Although a §§ § petitioner, such as i\/ls. Gaiter, is entitled to “leniency,” the petitioner’s
§§ § status “cannot be construed as allowing the court to cast aside jurisdictional
prerequisites." See Baker ex rel. Baker v. Sec’v of Health & Human Servs., 61 Fed. Cl.
669, 671 (citations omitted), appeal dismissed, 112 F. App’x 35 (Fed. Cir. 2004). Such a
limitation is consistent with the “age-old rule that a court may not in any case, even in the
interest of justice, extend its jurisdiction where none exists.” See Christianson v. Colt
indus Operatinq Corp., 486 U.S. 800, 818 (1988); see also Johns-l\/lanville Corp. v.
United States 855 F.2d 1556, 1565 (Fed. Cir. 1988) (“Principles of equity do not support
finding jurisdiction exists A court may not in any case, even in the interest of justice,
extend itsjurisdiction where none exists.” (citation omitted)), pe_rt. denied, 489 U.S. 1086
(1989). Although particularly unfortunate that the petitioner is caught in the jurisdictional
quagmire of statutory appellate deadlines the court cannot even “in the interest ofjustice"
act when the court lacks jurisdiction over i\/ls. Gaiter’s appeal of the Special i\/laster’s April
12, 2018 Order only dismissing part of i\/ls. Gaiter’s claims See Weiss v. Sec’v of Health
& Human Servs., 59 Fed. Cl. at 627 (“[T]here is no basis in the Vaccine Act, the Rules of
the Court of Federal Claims or the Vaccine Rules to warrant the Court’s review of this
interim ruling.”).

 

CONCLUS|ON
The above-captioned case is DiSMiSSED.

lT lS SO ORDERED.

'/ ,/; /1 ? 7
_ ¢¢(@M,/YHA¢/v<,`
MAR|AN BLANK HORN
Judge

 

 

3 Vaccine Rule 36 states that, “after the entry ofjudgment,” a party may file a motion for
reconsideration under Rule 59 (2018) of the Rules of the United States Court of Federal
Claims (RCFC) or RCFC 60 (2018). Under RCFC 59, “[w]ith the exception of a motion
based on ‘any fraud, wrong, or injustice . . . done to the United States,’ a motion must be
filed with 28 days ofthe datejudgment entered.” Blake v. Sec’v of Health & Human Servs.,
No. 03-0031V, 2014 WL 7331948, at *4 (Spec. l\/lstr. Fed. Cl. Spec. Sept. 11, 2014)
(omission in original) (quoting RCFC 59(b)); § M RCFC 59(b)(1)-(2). i\/lotions under
RCFC 60 “must be made within a reasonable time," and, if concerning a reason in RCFC
60(b)(1)-(3), must be filed “no more than a year after the entry of the judgment or order
or the date of the proceeding.” RCFC 60(c).

 

14

