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                                                                                              No. 02-220V
                                                                                                                                   FILED
                                                                         (Filed Under Seal: July 25,2016)
                                                                                                                                  AUG    - 9 20t6
                                                                                  (Reissued: August 9, 2016)                     U.S. COURT OF
                                                                                                                                FEDERAL CLAIMS

 *,1.**{,{.*t',1.,1.**'l *** * ** * * {.*,t                      {<:1.   *   rr   ***   A   +* ***
                                                                                                            Vaccine case; untimely motion for
 JOSE VALLE and ANDREA VALLE. on                                                                            review of a special master's decisionl
 behalf of J.V.. a minor.                                                                                   application of42 U.S.C. $ 300aa-12(e);
                                                                                                            lack of iurisdiction
                                                     Petitioners,



 SECRETARY OF HEALTH AND
 HUMAN SERVICES,

                                                     Respondent.
 ,i   ,i:f   :f   t +:t   ,f ,t :t   *'f 't,t:t't,t:f * * * + * * + * * * + * * * * * * * *


                   Jose         Valle and Andrea Valle, pro se, Miami, Florida.

        Ryan D. Pyles, Trial Attorney, Torts Branch, Civil Division, United States Department of
Justice, Washington, D.C. for respondent. With him on the brief were Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division, and Rupa Bhattacharyya, Director,
Catharine E. Reeves, Acting Deputy Director, and Gabrielle M. Fielding, Assistant Director,
Torts Branch, Civil Division, United States Department of Justice, Washington, D.C.

                                                                             OPINION AND ORDERI

        Petitioners Jose Valle and Andrea Valle seek review ofa special master's decision
denying them compensation under the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, Title III, $ 311, 100 Stat. 3756 (codified as amended at 42 tJ.S.C. $$ 300aa-l to
300aa-34) ("Vaccine Act"). The special master filed his decision on April 13,2016, andthe
ensuingjudgment was entered on May 31,2016. On June 1 , 201 6, the Valles filed their motion
for judicial review ("Pet'rs' Mot."), ECF No. 141. The govemment opposes this motion, arguing
that the court lacks jurisdiction because the petitioners filed the motion beyond the time specified

        'ln accord with the Rules of the Court of Federal Claims ("RCFC"), App B ("Vaccine
Rules"), Rule l8(b), this opinion and order is being initially filed under seal. By rule, the parties
have fourteen days in which to propose redactions. If no redactions are proposed, the decision
will be issued in the form in which it was filed under seal.



                                                                                                             !'J,".Is,"#*"ltl'gJHf_fi   *l"lff "1398?
in 42 U.S.C. $ 300aa-12(e)(1), which allows a party 30 days to file a motion for review after the
special master issues his or her decision. ,See Resp't's Resp. to Mot. for Review ("Resp't's
Opp'n"), ECF No. 142.

                                         BACKGROUND

         This case has an extensive history, which is recounted at length in the special master's
decision. See Valle v. Secretary of Health & Human Serus., No. 02-220y,2016 WL 2604782, at
t2-*14 (Fed. Cl. Spec. Mstr. Apr. 13,2016). The Valles filed this case pro se on March 20,
2002, alleging that their then-15-month-old son, J.V., had experienced a post-vaccination change
in behavior and averring that several different vaccines were the cause. 1d at*5; see also Pet.,
ECF No. I (March 20,2002) (alleging their son stopped talking, making sounds, or following
directions after being vaccinated). The case was originally assigned to a special master, but it
was subsequently consolidated in the Omnibus Autism Proceeding ("OAP"), along with 5,400
other actions, pending the results ofseveral test cases. SeeValle,2Ol6 WL 2604782, at *5-*6.
At some point near this time, J.V. was diagnosed with an autism spectmm disorder. 1d The
OAP test cases concluded in 2010. Id. at*3. In the test cases, the special masters and reviewing
courts rejected claims that various vaccines had caused petitioners' autism spectrum disorders.
1d (citing decisions by the Office of Special Masters, Court of Federal Claims, and Court of
Appeals for the Federal Circuit).

        On November 7 ,2011, the Valles were notified about the outcome ofthese cases and
asked to decide whether they wished to proceed with their claims. see valle,2016 wL 2604792,
at *6. On January 31,2013, the Valles filed an amended petition for review, ECF No. 67,
generally alleging that J.V. suflered from encephalitis as a result ofa diphtheria+etanus-acellular
pertussis vaccine ("DTaP") and that this was a "table injury." Am. pet. !T!T l6-17.2 The
petitioners also allegcd J.v.'s injuries could have been caused by Haemophilus influenza type b
("Hib") and polio ("IPV") vaccines. See Per'rs' Mot. ar 5.

         On May 23, 2013, the petitioners filed a status report explaining that they were asserting
a table injury claim. Pet'rs' Status Report fl 6, ECFNo.71. The assigned special master
consequently issued a scheduling order setting deadlines for expert reports. see order of May
30,2013, ECF No. 72. The special master cautioned the petitioners about the difference between
a claim oftable injury and a claim ofnon-table injury; to prove a table injury, petitioners needed
to show that 'I.V. received a vaccine and suffered an injury that matched a conesponding
vaccine-injury specification on the injury table. 1d Ifpetitioners were unable to make this

        2
          For a "table injury," a petitioner must generally establish that the vaccine received is
listed on the Vaccine Injury Table, that the vaccine was received in the united states, that the
injury or condition is "set forth on the Vaccine Inj ury Table in association with the vaccine," and
that "the first symptom or manifestation of the [injury or condition]. . . occurred within the time
period after vaccine administration set forth in the Vaccine Injury Table." 42 u.s.c. 300aa-
                                                                                          $
l1(c)(l)(B), (C). For an "offtable" vaccine injury, a petitioner must establish causation by
preponderant evidence. S'ee 42 U.S.C. gg 300aa-11(c)(t)(B), (CXiiXD, 300aa-13(a)(1); Althen v.
Secretary of Health & Human Servs., 418 F.3d 1274, 12jB (Fed. Cir. 2005); Whitney v.
Secretary of llealth & Human Servs., 122 Fed. Cl. 297,299 (2015\.
showing, they would have to prove cause-in-fact pursuant to the standards of Althen,4l 8 F.3d at
1278. Id. In response, the petitioners filed affidavits of several doctors. See Valle,2016WL
2604782, aI*17.

        Petitioners filed proposed findings of fact and law on April 24,2015, ECFNo. I 17, and
the Secretary responded on May I I , 2015, ECF No. I 20.r The assigned special mastcr
subsequently issued a thorough 33-page opinion denying the Valles' petilion. Valle,2016 WL
2604782, at *26. The special master found that there was insufficient evidence of a table
encephalopathy related to DTaP, id. at +19, concluding that the limited medical evidence was
unpersuasive and deciding not to credit certain statements of fact made by the Valles, id. aI *20-
21. The special master next addressed petitioners' earlier pleadings which had alleged
"anaphylactic shock." 1d at *23. On that point, he found the evidence insufficient to establish a
table anaphylaxis.  Id   Finaily, the special master leniently construed the Valles'filings as
alleging that J.V.'s injury was caused-in-fact by his vaccinations pursuant to the standards of
Althen,4l8 F.3d at 1278. Id. at *25-26. Apptying that standard, the special master determined
that the Valles had not proved that any vaccine had in fact caused J.V.'s conditions. 1d

                                         JURISDICTION

          Before considering the merits of a petitioner's motion, the court must determine that it
has j  urisdiction. Jurisdiction is the "power to declare the law," and when the court does not have
jurisdiction, its "only function" is to "announc[e] the fact and dismiss[] the cause." Ex parte
 McCardle, T4 U.S.506,514 (1868). Because jurisdiction is a prerequisite to any court action, all
 courts have "an independent obligation" to adhere to jurisdictional prescriptions. Arbaugh v. y
 & H Corp.,546 U.S. 500, 514 (2006) (citing Rzhrgas AG v. Marathon Oil Co.,526 U.S. 574,
 5 83 ( 1999)). Jurisdictional terms, limitations, and constraints cannot be relaxed. waived. or

forfeited, even when application ofthose provisions would cause undue hardship to one of the
parties. See Mojicav. Seuetary of Health & Human Servs.,287 Fed. Appx. 103, 104(Fed. Cir.
2008) ("This result is draconian but compelled by law.").

         Owing adherence to this rule of law, this court must determine whether the ,,30-day,'
limitation of42 tJ.S.C. $ 300aa-12(e) on filing a motion for review of a special master's decision
is jurisdictional. The pertinenl statutory subsection provides:


        (l)    Upon issuance ofthe 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. . . .

        (2)    Upon the Jiling of a motion under paragraph (l ) with respect to a petition,
               the United States Court of Federal Claims shall have iurisdiction to



       3During the lengthy progression
                                         ofthis case, petitioners were represented at different
times by five separate counsel. The last ofthese counsel terminated his representation on August
26,2015, after filings regarding the merits had been submitted to the assigned special master for
decision. See Order ofAug.26,2015, ECF No. 130.
               undertake a review ofthe record ofthe proceedings and may thereafter
               [uphold or set aside the special master's decision] . . . .

        (3)    In the absence of a motion under paragraph ( 1) respecting the special
               master's decision or if the United States Court of Federal Claims [upholds
               the decisionl, the clerk of the United States Court of Federal Claims sftail
               immediately enter judgment in accordance with the special master's
               decision.

42 U.S.C. $ 300aa-12(e) (emphasis added).

          In 1993, the United States Court ofAppeals for the Federal Circuit held that this 30-day
 limitation on filing motions ior review is jurisdictional. ll/iddoss v. Secretary of Health &
Human Servs.,989 F.2d 1170, 1177 (Fed. Cir. 1993). In lltiddoss, the Federal Circuit
 determined that the statute's plain language states "in the strongest possible terms that filing a
 motion to review the special master's decision within the 30-day period is a prerequisite to the
 [court's] jurisdiction." Id. at 1176. That reading is reinforced by the legislative history, the
 Circuit explained, because the House conference report accompanying the legislation states that
"if such a motion 1br review is filed within the applicable time limits, the [c]ow is then to decide
 [the case]." Id (quoting H.R. Rep. No. l0l-386, at 516 (1989). Following Widdoss, courts
have dismissed any late petitions on jurisdictional grounds. See Mahaffey v, Secretary of Health
 & Human Servs., 368 F.3d 1378, 1380 (Fed. Cir. 2004) (affirming dismissal of a motion for
rcview for lack ofjurisdiction, when the motion was filed two days late); Decker v. Secretary of
Health & Human Servs.,5l Fed. Cl. 288,289 (2001) (dismissing motion for review for lack of
jurisdiction, when the motion was filed one day late). Given the binding authority of Widdoss,
this court would lack jurisdiction to consider the petitioner's motion for review, which was filed
on June 1, 2016, more than 30 days after the special master's decision ofApril 13, 2016. See
Hemey v. Secretary of Healrh & Human Servs., 88 F.3d 1001, 1002 (Fed. Cir. 1996) (holding
that the special master's decision's date of "issuance" is the date the decision is filed with the
clerk's office).

         Nevertheless, three recent developments "have cast into doubt the jurisdictional nature of
 the deadline to file a motion lor review." Price v. Seuetary of Health & Human Servs., 565 Fed.
 Appx. 891, 894 & n.1 (Fed. Cir. 2014) (affirming dismissal of a motion for review for lack of
jurisdiction, but commenting that lYiddoss and similar precedents had been "cast into doubt");
see also G.L.G. ex rel. Graves v. Secretary of Health & Human Servs., 577 Fed. Appx. 976,981
 (Fed. Cir. 2014) (same).

        First, in a recent line ofdecisions, the Supreme Court has instructed that "most time bars
are nonjurisdicti onal." United States v. Kwai Fun lYong, _U.5. _, _, 135 S. Ct. 1625,1632
(2015); see also Sebelius v. Auburn Reg'l Med. Cnft., 568 U.S. _, _, 133 S. Ct. 817 (2013);
Henderson ex rel. Henderson v. Shinseki,562 U.S. 428,435 (2011); Reed Elsevier, Inc. v.
Muchnick,559 U.S. 154, 168 (201O); John R. Sand & Gravel Co. v. United States,552 U.S. 130,
133-34 (2008); Arbaugh,546 U.S. at 516 (same). The implication of this instruction is that filing
deadlines might be equitably tolled by the courts. .See Kwai Fun LI/ong, _U.S. at _, 135 S. Ct.
at 1638 (citing lrwin v. Department of Veterans Affair.r, 498 U.S. 89, 95 (1990) (holding that
"the same rebuttable presumption ofequitable tolling applicable to suits against private
defendants should also apply to suits against the United States. Congress, of course, may
provide otherwise if it wishes to do so.")).

         Second, the Supreme Court has refined the principles to be employed for determining
 whether a statute is jurisdictional. When making such a decision, lower courts must "inquire
 whether Congress has 'clearly stated' that the rule is jurisdictional." Auburn Reg 7, 133 S. Ct. at
 824. "Absent such a clear statement . . . courts should treat the restriction as nonjurisdictional."
Kwai Fun Wong,135 S. Ct. at 1632 (q:uoting Auburn Reg'1,133 S. Ct. at 824 (in tum quoting
Arbaugh,546 U.S. at 516)) (internal quotation marks omitted). This does not amount to a
requirement that Congress use "magic words," but it does mean that "traditional tools of
 statutory construction must plainly show that Congress imbued a procedural bar with
jurisdictional consequences." Id. (quoting Auburn Reg'|,133 S. Ct. at 824). "The statutory
 language, placement ofthe provision within the statutory scheme, and'context, including
 [Supreme Court] interpretations of similar provisions in many years past,' are indicative of
whether a provision is j urisdictional." FordMotorCo.v. United Stare.r, Sl l F.3d l3'11,1377
 (Fed. Cir. 201 6) (citations omifted) (quoting Auburn Reg'1, 133 S. Ct. at 835).

        Third, the court ofappeals has applied the underpinnings of this line ofSupreme Court
cases to the Vaccine Act, holding that the 36-month statute of limitations for filing a petition for
compensation, see 42U.5.C. g 300aa-16(a)(2), is not jurisdictional and thus may be equitably
tolled. Cloer v. Secretary oJ Health & Human Servs., 654 F .3d 1322, 1340-44 (Fed. Cir. 201 1 )
(en banc) (overruling Brice v. Secretary of Health & Human Servs.,240 F .3d 1 367 (Fed. Cir.
2001)). Although the holding in Cloer was directed to Paragraph 300 n-16(a)(2) of the Vaccine
Act, dicta in the opinion suggests that Cloer's reasoning might apply broadly to the Act. See
Cloer, 654 F.3d at 1344 (surveying the "detailed time limits goveming processing of cases" and
concluding that "these time limits are designed to benefit the petitioner.").

         These developments since the decision in lYiddoss was rendered require reanalysis ofthe
jurisdictional effect of Paragraph 300aa-12(e)(l), applying the principles of Kwai Fun lhong.
 Subsection 300aa-12(a) states in explicit terms that this court shall "have jurisdiction over
 proceedings" "in accordance" with the Section. The statute adds in Paragraph 300aa-12(e)(2)
 that "upon the filing of a motion under paragraph ( 1)," the "Court of Federal Claims shall have
jurisdiction to undertake a review." The jurisdictional references in the statutory text are
reinforced by the overall heading of the Section, which is "Court jurisdiction." Although
 statutory headings are not dispositive, the "placement" of Paragraph 300aa-12(e)(2) in Section
300aa-l2 "provide[s] some indication ofCongrcss' inIenL" Henderson,562 U.S. at 439-40
(holding a provision was not jurisdictional, after noting that the provision was not included in
another section of the statutory scheme that was titled "Jurisdiction; finality ofdecisions").
Additionally, the statutory context is consistent with ajurisdictional reading because, pursuant to
Paragraph 300aa-12(e)(3), the clerk of this court "shall immediately enter judgment', if no
motion for review is filed.

       The express use ofthe term 'J urisdiction" in Section 300aa-12 also distinguishes the 30-
day limitation on filing motions for review from thc statute of limitations at issue in Cloer, which
was not stated in jurisdictional Lerms. Compare 42 U.S.C. g 300aa-12(e)(1) (,,Upon the filing of
a motion under paragraph ( I ) . . . [the court] shall have jurisdiction . . . ."), with 42 U.S.C.
$ 300aa- I 6(a)(2) ("tNlo petition may be filed . . . after the expiration of 36 months."). See also
Henderson,562 U.S. at 438 (holding that a statute providing that "a person adversely affected by
[a decision ofthe Board ofVeterans' Appeals] shall file a notice ofappeal with the Court within
120 days after the date on which notice of the decision is mailed," did "not speak in jurisdictional
terms or refer in any way to the jurisdiction of the Veterans Court." (quoting Zipes v. Trans
I orld Airlines Inc., 455 U.S. 385, 394 (1982). And although the time limits in the Vaccine Act
may be for the "benefit" ofthe petitioner, Cloer,654 F.3d at 1344, that consideration cannot
override the statute's plain jurisdictional language.

          For these reasons, the court must dismiss petitioners' motion for lack ofjurisdiction, even
though the court does so reluctantly. Paragraph 300aa-12(e)(1) is notably rigid and out ofstep
 with other statutes and rules relating to the time for seeking review or appeal. For example,  if
petitioners were to seek an extension for an appeal from this court's ruling, the court would have
juridical power to grant this extension. See Fed. R. App. P. a(a)(5), (6) (granting trial courts
 discretion to extend the time for filing an appeal, even after the prescribed time has expired).4

       aThe pertinent
                      rule of appellate procedure provides in pertinent part:
         (5) Motion for Extension of Time.
               (A)    The district court may extend the time to file a notice   of
                      appeal if:
                       (i)   a party so moves no later than 30 days  after
                             the time prescribed by this Rule 4(a) expires;
                             and
                       (iD   regardless of whether its motion is filed
                             before or during the 30 days after the time
                             prescribed by this Rule 4(a) expires, that party
                             shows excusable neglect or good cause.
               (B)     A motion filed before the expiration of the time
                       prcscribed in Rule 4(a)(l) or (3) may be ex parte unless
                       the court requires otherwise. If the motion is filed after
                       the expiration of the prescribed time, notice must be
                       given to the other parties in accordance with local rules.
               (C)     No extension under this Rule 4(a)(5) may exceed 30
                       days after the prescribed time or l4 days after the date
                       when the order granting the motion is entered,
                       whichever is la1er.
        (6) Reopening   the Time to File an Appeal. The district courr may
               reopen the time to file an appeal for a period of 14 days after the
               date when its order to reopen is entered, but only if all the
               following conditions are satisfi ed:
               (A)     the court finds that the moving party did not receive
                       notice under Federal Rule of Civil Procedure 77(d) of
By contrast, Rule 23 of the Vaccine Rules governing "Motionfs] for Review" implements the
statutory limitations of42 U.S.C. $ 300aa-12(e) and provides no similar discretion, instead
expressly barring any extensions of time to seek review of a special master's decision. See
Vaccine Rules of the United States Court of Federal Claims 23(b) ("No extensions of time will
be permitted under this ruIe."). The wisdom of the statutory time constraint on jurisdiction for
review, is, however, a matter for Congress, not the court. The court is obliged to adhere to the
statute as wntten.

        Even if equitable tolling were available, see Price,565 Fed. Appx. at 894 (addressing
equitable tolling, in the alternative, after concluding that the trial court otherwise had
appropriately dismissed the late-filed motion for review for lack ofjurisdiction), the
circumstances of this case would not support an exercise ofthe court's discretion to allow the
late submission. Equitable tolling is generally appropriate in instances where fraud, duress, or
extraordinary circumstances have stood in the way of a litigant who has diligently pursued his or
her rights. Cloer, 654 F .3d at 1344-45 . And, equitable tolling sets a higher bar than "excusable
neglect" or "good cause," which are the standards applicable to extensions for filing appeals
under Fed. R. App. a(a)(5)(A)(ii). See Nelson v. Nicholson,489 F.3d 1380, 1383-84 (Fed. Cir.
2007) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship,507 U.S. 380, 382
(1993)). Under the doctrine ofexcusable neglect, which is available only when expressly
authorized by statute or rule, ld, neglect is defined as simple, faultless omissions or carelessness,
see Cygnus Corp. v. United Stales, 65 Fed. Cl.646,649 (2005) (citing Pioneer,5O7 U.S. at
388)). The doctrine permits a court to excuse neglect upon weighing "the danger ofprejudice to
the [non-movant], the length ofthe delay and its potential impact onjudicial proceedings, the
reason for the delay, including whether it was within the reasonable control of the movant, and
whether the movant acted in good faith." Id. (q:uoling Pioneer,507 U.S. at 395). To warrant
equitable tolling, however, the movant must show sometJring more. Nelson,489 F.3d at 1384-
85.

        On July 20,2016, the Valles filed a reply to the govemment's response, asserting that
they received the special master's decision on May 5,2016, not April 13,2016. Pet'rs' Reply at
l, ECFNo. 143. The Valles aver that they were not "informed about the April 13,2016
decision," and that their time for seeking review should run from May 5, not April 13. 1d This
averment, however, is contradicted by the court's records. The clerk's office has on file a
Federal Express receipt showing that a copy of the special master's decision was delivered to the
petitioners on April 14,20f 6, at 9:49 a.m., i.e., on the moming after the decision was issued.



                       the entry of the judgment or order sought to be appealed
                       within 2l days after entry;
               (B)     the motion is filed within 180 days after the judgment or
                       order is entered or within 14 days after the moving party
                       receives notice under Federal Rule of Civil Procedure
                       77(d) ofthe entry, whichever is earlier; and
               (c)     the court finds that no party would be prejudiced.
       Fed. R. App. P. a(a)(s), (6).
These circumstances do not amount to excusable neglect, let alone the more rigorous showing
required for equitable tolling.

                                       CONCLUSION

        The motion for review is DISMISSED for lack ofjurisdiction.

       No costs.

        It is so ORDERED.


                                            Charles
