Mojica v. Sec'y of Health & Human Servs.
| Decision Date | 14 December 2011 |
| Docket Number | No. 07-501V,07-501V |
| Parties | YLUMINADA MOJICA and JULIO ACEVEDO, as legal representatives of JOSHUA ACEVEDO, Petitioners, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. |
| Court | U.S. Claims Court |
Motion for relief from a final judgment; overruling of the precedent dictating the prior judgment; RCFC 60(b)(5); overruling was in a different case; RCFC 60(b)(6); "extraordinary circumstances"
Mindy Michaels Roth, Britcher, Leone & Roth, L.L.C., Glen Rock, New Jersey, for petitioner.
Heather L. Pearlman, Trial Attorney, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C., for respondent. With her on the brief were Tony West, Assistant Attorney General, Civil Division, and Mark W. Rogers, Acting Director, Vincent J. Matanoski, Acting Deputy Director, and Catherine E. Reeves, Assistant Director, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C.
Four years ago, this court affirmed a special master's decision dismissing a vaccine claim by petitioners because the claim was filed several days after the applicable statute of limitations had expired. Mojica v. Secretary of Health & Human Servs., 79 Fed. Cl. 633 (2007), aff'd, 287 Fed. Appx. 103 (Fed. Cir. 2008), cert. denied sub nom. Mojica v. Sebelius, ___ U.S. ___, 129 S. Ct. 2455 (2009). Petitioners' failure to meet the filing deadline was attributable to errors by Federal Express, which twice lost their petition while transporting it to the courthouse. Nonetheless,under the Federal Circuit precedent controlling at the time, the statute of limitations could not be tolled. See Mojica, 79 Fed. Cl. at 636-38 (citing Brice v. Secretary of Health & Human Servs., 240 F.3d 1367 (Fed. Cir. 2001)). That precedent has since been overturned by the Federal Circuit in an en banc decision, see Cloer v. Secretary of Health & Human Servs., 654 F.3d 1322, 1340-44 (Fed. Cir. 2011) (overruling Brice), and petitioners now seek relief from the previous judgment under RCFC 60(b).2
In their original petition, Ms. Mojica and Mr. Acevedo alleged that on June 28, 2004, their son, Joshua Acevedo, received a routine DTaP vaccination and a routine Prevnar vaccination. Pet. ¶ 18. Within a few hours, Joshua displayed symptoms ranging from fever to "intermittent startling attacks." Pet. ¶ 19-21. He was hospitalized for four days and prescribed a variety of drugs to counteract his seizures. Pet. ¶ 22-25. After subsequent visits, his doctors noted various developmental delays. Pet. ¶¶ 36, 47, 54.
Petitioners were referred to attorney Mindy Michaels Roth. Aff. of Mindy Michaels Roth (June 25, 2007) ("First Roth Aff.") ¶ 4. Ms. Roth worked with them to prepare a petition for compensation through the National Vaccine Injury Compensation Program. Id. Under the program's statute of limitations, such petitions must be filed within 36 months after the first cognizable symptom. See 42 U.S.C. § 300aa-16(a)(2). Consequently, petitioners' vaccine claim was due by June 28, 2007. Ms. Roth's efforts were hindered by difficulties in acquiring certain medical records and Ms. Mojica's own medical issues, which prevented her and Mr. Acevedo from coming into the office to sign affidavits. First Roth Aff. ¶¶ 5-6, 9. Aware of the impending deadline imposed by the statute of limitations, Ms. Roth resolved to submit a petition that might have to be amended later. Id. ¶ 10.
On June 25, 2007, Ms. Roth tendered the petition to Federal Express for overnight delivery to the Court of Federal Claims. See Aff. of Mindy Michaels Roth (June 29, 2007) ("Second Roth Aff.") ¶ 2, Exs. A, B. The courier service asserted that the petition would arrive at the courthouse on the morning of June 26, 2007, two days before the statute of limitations would run. Id. ¶ 4, Ex. B. However, Federal Express lost track of the package in its Newark, New Jersey, sorting facility on the evening of June 25, 2007. Id. Ex. B. The shipping company informed Ms. Roth that the petition was lost, but by a facsimile sent on June 29, 2007 — one day after the limitations period ended. Id. Federal Express did not locate the errant petition until some days later, finally delivering it on July 13, 2007.
Upon learning of the shipping error, Ms. Roth immediately sent out another copy of the petition, again using the overnight delivery service of Federal Express. Aff. of Mindy Michaels Roth (July 20, 2007) ("Third Roth Aff.") ¶ 7. In a truly astounding turn of events, Federal Express lost track of this package as well. Id. ¶¶ 8-9, Ex. I. It did not deliver the second petition until July 3, 2007.
The clerk of the court processed this second petition as a new case with a filing date of July 3, 2007. Shortly thereafter, the government moved to dismiss the petition as untimely. The assigned special master determined that the petition was filed after the limitations period and ruled that he could not apply the doctrine of equitable tolling. Acevedo v. Secretary of Health & Human Servs., No. 07-501V, 2007 WL 2706159, at *4-5 . He relied upon the Federal Circuit's holding in Brice, which had held that equitable tolling is not available for claims arising under the Vaccine Act. Id. Consequently, the special master concluded that the statute of limitations in 42 U.S.C. § 300aa-16(a)(2) barred consideration of the petition. Id. at *4. He commented that the outcome was "harsh — untenable, really," id. at *5 — but considered that he was constrained by the "complete and inflexible" nature of the "Federal Circuit's prohibition of the doctrine of equitable tolling in [vaccine] cases," id. at *4.
Petitioners sought review of the special master's decision in this court. In a decision issued November 28, 2007, the court held that the special master had properly dismissed petitioners' case. Mojica, 79 Fed. Cl. 633. Although the court concluded that the petitioners had taken "reasonable steps" to ensure the timely delivery of their vaccine petition, id. at 637-38, this fact was unavailing in the face of the Federal Circuit's holding in Brice, which "categorically bar[red] equitable tolling in all cases involving late petitions under the Vaccine Act." Id. at 638 (citing Brice, 240 F.3d at 1374). The court stated that the result was "draconian but compelled by law." Id. at 639.
Petitioners appealed to the Federal Circuit without success, see Mojica, 287 Fed. Appx. 103, reh'g en banc denied, (Fed. Cir. 2008), and then sought the grant of a writ of certiorari by the Supreme Court, also without success, see Mojica, ___ U.S. ___, 129 S. Ct. 2455.
Two years after the Supreme Court denied petitioners' plea for review, the Federal Circuit sitting en banc issued its decision in Cloer, 654 F.3d 1322, "overrul[ing] Brice and hold[ing] that equitable tolling applies to the Vaccine Act," id. at 1340. The court of appeals observed generally that tolling would be available where "a litigant . . . diligently pursued his rights, but . . . 'some extraordinary circumstance stood in his way.'" Id. at 1344 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Armed with the opinion from Cloer, petitioners have returned to this court seeking to vacate the judgment entered in this case. Although they have filed a motion under RCFC 60(b)(5) and 60(b)(6), their argument is essentially the same under both subdivisions of the Rule, i.e., that the court should reopen the case because of the intervening change in law announced in Cloer coupled with the unusual circumstances attendant to the untimely delivery of their petition.
Under RCFC 60(b), "the court may relieve a party . . . from a final judgment" for reasons that include, among other things, circumstances in which "(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief."
As with other equitable remedies, the trial court must exercise sound discretion in "balanc[ing] . . . all of the factors arising in a Rule 60(b) motion." W.L. Gore & Assocs., Inc. v. C.R Bard, Inc., 977 F.2d 558, 562 (Fed. Cir. 1992) (citing Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 755 F.2d 38, 41 (3d Cir. 1985); CTS Corp. v. Piher Int'l Corp., 727 F.2d 1550, 1555 (Fed. Cir. 1984)).3 "Rule 60(b) is to be 'liberally construed for the purpose of doing substantial justice,'" Patton v. Secretary of Health & Human Servs., 25 F.3d 1021, 1030 (Fed. Cir. 1994) (quoting James Wm. Moore, 7 Moore's Federal Practice ¶¶ 60.18[8], 60.19 (2d ed. 1993)), but, to preserve finality of judgments, relief under RCFC 60(b) should not be granted lightly. TDM Am., LLC v. United States, ___ Fed. Cl. ___, ___, 2011 WL 3585001, at *6 (2011) (citing Sioux Tribe of Indians v. United States, 14 Cl. Ct. 94, 101 (1987), aff'd, 862 F.2d 275 (Fed. Cir. 1988)).
Petitioners first ask that their motion for relief from judgment be granted under RCFC 60(b)(5). See Pet'r's Mem. of Law in Support of Rule 60(b) Mot. for Relief from Judgment ("Pet'r's Mem.") at 1. Under this provision, a court may relieve a party from a final judgment when, among other things, that judgment "is based on an earlier judgment that has been reversed." RCFC 60(b)(5). Petitioners contend that they qualify for relief under this portion of the Rule because (1) the prior judgment was based on the holding in Brice, and (2) that holding was overturned by Cloer. Pet'r's Mem. at 9. The government does not dispute either of these premises, but denies that an intervening change in law warrants relief under RCFC 60(b)(5). Resp't's Mem. in Resp. to Pet'r's Mot. for Relief from Judgment ("Resp't's Mem.") at 3, 6.
Under the portion of RCFC 60(b)(5) upon which petitioners rely, courts cannot vacate a judgment simply because it...
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