                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-1-2007

Wallace v. Abell
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3361




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Wallace v. Abell" (2007). 2007 Decisions. Paper 1688.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1688


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                            NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                   No. 06-3361


            JOHN WALLACE; MARGARET WALLACE, Wife;
               HEATHER WALLACE, Daughter, Child #1;
COSETTE WALLACE, Daughter, Child #2; GRACE WALLACE, Daughter, Child #3;
   DANIEL WALLACE, Son, Child #4; FAITH WALLACE, Daughter, Child #5;
    JOY WALLACE, Daughter, Child #6; JOSHUA WALLACE, Son, Child #7;
     SAMUEL WALLACE, Son, Child #8; DAVID WALLACE, Son, Child #9;
                JONATHAN WALLACE, Son, Child #10;
           AIMEE WALLACE, Daughter (Deceased), Child #11;
 UNBORN CHILD (Deceased), Child #12; UNBORN CHILD (Deceased), Chile #13;
               VICTORIA WALLACE, Daughter, Child #14

                                        v.

        *RICHARD ABELL, Special Master (In Vaccine Compensation Cases);
       J. BRIAN BISHOP, Clerk of Court United States Court of Federal Claims;
  FEDERAL EMPLOYEES, (Individuals (Un)Named in Connection With the Order).;
OTHERS UNKNOWN TO THE PLAINTIFF AT THE PRESENT TIME CONSISTING
 OF LAW CLERKS, CLERKS IN THE CLERK'S OFFICE, ET AL.; JAN HORBALY,
      Clerk of Court of the United States Court of Appeals for the Federal Circuit;
         OTHERS UNKOWN TO THE PLAINTIFF AT THE PRESENT TIME
   CONSISTING OF LAW CLERKS, CLERKS IN THE CLERKS OFFICE, ET AL;
          DEPARTMENT OF HEALTH AND HUMAN SERVICES, (DHHS);
    VINCENT MATANOSKI, Attorney for DHHS, Others in the Employ of DHHS
      who were involved in the Claims Court Case; SHOEMAKER AND HORN;
    CLIFFORD SHOEMAKER, Attorney Representing Plaintiff before withdrawing
   others in the employ of Shoemaker and Horn and/or Clifford Shoemaker who were
       involved in the Claims Court Case; VIERA SCHEIBNER, PHD. Australia,
     "Expert Witness" for the Plaintiff; OFFICE OF THE ATTORNEY GENERAL;
        CHRISTOPHER WRAY, Assistant Attorney General, Criminal Division;
     BRUCE OHR, Chief, Organized Crime; JOSHUA HOCHBERG, Chief, Fraud;
                      UNITED STATES ATTORNEY'S OFFICE;
                    PATRICK L. MEEHAN, United States Attorney;
                         MRS. FARNON, (Function Unknown)
                                                        John Wallace,
                                                               Appellant

               *(Amended in accordance with Clerk Order dated 08/30/06)


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           D.C. Civil Action No. 05-cv-6022
                              (Honorable James T. Giles)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 22, 2006

       Before: SCIRICA, Chief Judge, SMITH and CHAGARES, Circuit Judges

                                 (Filed: February 1, 2007)


                               OPINION OF THE COURT


PER CURIAM.

       Appellant John Wallace and his wife Margaret filed a claim in 1997 for

compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 et

seq., alleging that the polio vaccinations received by their daughter Aimée led to her

death and the death of another of their children.1 Toward the end of lengthy proceedings,

the case was assigned to Special Master Richard Abell of the Office of Special Masters of

the United States Court of Claims. On October 28, 2005, Special Master Abell filed a



   1
    Aimee died on April 15, 1994, seven weeks after her third oral polio vaccination.
The cause of death was determined to be dehydration following acute enteritis.

                                             2
decision in the Wallaces’ case, finding that, although they had had ample time to do so,

they had provided no expert medical opinion to support their claim. See Wallace v.Sec’y

of Health & Human Services, 2005 WL 3132463, at *3 (Fed. Cl. October 28, 2005)

(“Petitioners have proffered no evidence that their medical theory – implicating the polio

virus with the injuries alleged – is plausible.”). The petition was dismissed pursuant to a

judgment on November 30, 2005.

       A prior petition by Margaret Wallace on behalf of Aimée was dismissed with

prejudice by Special Master Abell on November 20, 2003 for failure to prosecute. After

the government submitted an expert report from Dr. Jerome Klein, Special Master Abell

directed Mrs. Wallace to secure a qualified medical expert to respond to Dr. Klein's

report. She did not secure a qualified medical expert as directed. See Wallace v.Sec’y of

Health & Human Services, 2003 WL 23218075 (Fed. Cl. November 21, 2003). Mrs.

Wallace appealed, but her appeal was dismissed on procedural grounds by the Clerk of

the United States Court of Appeals for the Federal Circuit, Jan Horbaly, for failure to file

a brief within the time required by Federal Rule of Appellate Procedure 31(a). See

Wallace v.Sec’y of Health & Human Services, 101 Fed. Appx. 340 (Fed. Cir. June 4,

2004) (Clerk’s Order).

       On November 17, 2005, John Wallace sued Special Master Abell, Horbaly and the

Clerk of the Court of Federal Claims, J. Brian Bishop, in United States District Court for

the Eastern District of Pennsylvania, alleging that they violated his civil rights, see Bivens

v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

                                              3
Special Master Abell was alleged to have acted without jurisdiction and to have issued

improper rulings, Bishop was alleged to have failed to timely notify Wallace of the

Special Master’s decisions, and Horbaly was alleged to have improperly terminated his

appeal to the Federal Circuit, all in violation of his right to due process. Wallace asked

for money damages and prospective relief in the form of having his vaccine case

reinstated, with all prior adverse orders vacated; he also sought the recusal of Special

Master Abell. The District Court granted the defendants’ motion to dismiss, and

dismissed the complaint in an order entered on June 16, 2006. Wallace appeals.

         We will affirm. The complaint was properly dismissed by the District Court. An

individual acting in a judicial capacity is absolutely immunized from a suit for money

damages, Stump v. Sparkman, 435 U.S. 349 (1978), even if acting erroneously, corruptly

or in excess of jurisdiction, see Mireles v. Waco, 502 U.S. 9, 11 (1991). Special Master

Abell, serving as a neutral adjudicator by appointment of the United States Court of

Federal Claims, is shielded from suit for the performance of judicial acts of the type

alleged here. See Forrester v. White, 484 U.S. 219, 228-29 (1988). We find appellant’s

arguments to the contrary unpersuasive. The same reasoning applies to Horbaly, who, as

Clerk of the Federal Circuit Court, exercised discretion in ordering that Wallace’s appeal

be dismissed on procedural grounds pursuant to a lawfully enacted federal rule.2 These


   2
       Federal Rule of Appellate Procedure 31 provides:

         (a) Time to Serve and File a Brief.
                                                                               (continued...)

                                               4
two judicial actors also are shielded from a suit for prospective relief under the Federal

Courts Improvement Act, Pub.L. No. 104-317, 110 Stat. 3847 (1996) (amending 42

U.S.C. § 1983 to provide that "injunctive relief shall not be granted" in an action brought

against "a judicial officer for an act or omission taken in such officer's judicial capacity,"

"unless a declaratory decree was violated or declaratory relief was unavailable").3

       Bishop is shielded from a suit for damages by the doctrine of qualified immunity.

See Williams v. Wood, 612 F.2d 982, 985 (5th Cir. 1980) (entering order and notifying

parties is routine, nondiscretionary duty). Assuming, arguendo, that Bishop had the duty

to provide timely notice of the Special Masters’ decisions, but see Rule 53(e), Rules of

the Court of Federal Claims (“A master who makes an order must file the order and



   2
    (...continued)
        (1) The appellant must serve and file a brief within 40 days after the record is filed.
        The appellee must serve and file a brief within 30 days after the appellant's brief is
        served. The appellant may serve and file a reply brief within 14 days after service
        of the appellee's brief but a reply brief must be filed at least 3 days before
        argument, unless the court, for good cause, allows a later filing.

                                    *       *       *     *

       (c) Consequence of Failure to File. If an appellant fails to file a brief within the
       time provided by this rule, or within an extended time, an appellee may move to
       dismiss the appeal. An appellee who fails to file a brief will not be heard at oral
       argument unless the court grants permission.

Fed. R. App. Pro. 31(a)(1), (c).
   3
    See Butz v. Economou, 438 U.S. 478, 504 (1978) (no distinction for purposes of
immunity between state official sued under section 1983 and federal official sued under
Bivens).

                                                5
promptly serve a copy on each party. The clerk must enter the order on the docket.”), and,

accepting as we must for purposes of Rule 12(b)(6) that the duty was breached here,

Conley v. Gibson, 355 U.S. 41, 45-46 (1957), the doctrine of qualified immunity protects

him unless he acted in a plainly incompetent manner or knowingly violated the law, see

Malley v. Briggs, 475 U.S. 335, 341 (1986), which Wallace has not argued in his brief on

appeal. Wallace did not seek prospective relief with respect to this defendant.

       We will affirm the order of the District Court dismissing the complaint.




                                             6
