NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-5019
YLUMINADA MOJICA and JULIO ACEVEDO, as Legal
Representatives of JOSHUA ACEVEDO,
Petitioners-Appellants,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellee.
Mindy Michaels Roth, Britcher, Leone & Roth, LLC, of Glen Rock, New Jersey,
argued for petitioners-appellants.
Heather L. Pearlman, Trial Attorney, Torts Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for respondent-appellee. With her
on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Timothy P.
Garren, Director, Vincent J. Matanoski, Acting Deputy Director, and Catharine E.
Reeves, Assistant Director.
Appealed from: United States Court of Federal Claims
Judge Charles F. Lettow
NOTE: This disposition is nonprecedential
United States Court of Appeals for the Federal Circuit
2008-5019
YLUMINADA MOJICA and JULIO ACEVEDO,
as Legal Representatives of JOSHUA ACEVEDO,
Petitioners-Appellants,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellee.
Appeal from the United States Court of Federal Claims
in case 07-VV-501, Judge Charles F. Lettow.
__________________________
DECIDED: July 18, 2008
__________________________
Before LINN, Circuit Judge, CLEVENGER, Senior Circuit Judge, and MOORE, Circuit
Judge.
PER CURIAM.
Yluminada Mojica and Julio Acevedo ("petitioners"), as legal representatives for
their son Joshua Acevedo, sought compensation under the National Vaccine Injury
Compensation Program. Respondent Secretary of Health and Human Services
("Secretary") moved to dismiss their case on the grounds that their claim is barred by
the statute of limitations contained in 42 U.S.C. § 300aa-16(a)(2). The special master
assigned to petitioners' case granted respondent's motion and the United States Court
of Federal Claims affirmed. Mojica v. Sec'y of Health and Human Servs., 79 Fed. Cl.
633 (2007). We affirm.
I
The relevant statute of limitations provides that no petition for compensation may
be filed "after the expiration of 36 months after the date of the occurrence of the first
symptom of onset or of the significant aggravation of such injury." The Vaccine Act
stipulates that "[a] proceeding for compensation . . . shall be initiated by service upon
the Secretary and the filing of a petition . . . with the United States Court of Federal
Claims." 42 U.S.C. § 300aa-11(a)(1) (2000). We have held that the statute of
limitations is not subject to equitable tolling. Brice v. Sec'y of Health and Human Servs.,
240 F.3d 1367, 1374 (Fed. Cir. 2001). In other words, if a petition for relief is filed
outside the mandatory time period, the petition must be dismissed, even though
equitable reasons exist to excuse the delay in filing the petition.
II
In this case, it is undisputed that the petitioners filed their petition for relief with
the Court of Federal Claims outside the 36 months allowed for filing by the statute of
limitations. Because of this fact, the special master dismissed the petition as "duty
bound to apply the law, despite the harsh–untenable, really–result." Acevedo v. Sec'y
of Health and Human Servs., No. 07-501V, 2007 WL 2706159, at *5 (Fed. Cl. Spec.
Mstr. Aug. 31, 2007).
On petitioners' motion for review in the Court of Federal Claims, the court stated that
it "is obliged to treat Brice as correctly stating the law, such that there is no possibility of
equitable tolling under the Vaccine Act even in the circumstances presented by this
2008-5019 2
case where counsel took reasonable steps to fulfill her obligation to file in time. This
result is draconian but compelled by law." Mojica, 79 Fed. Cl. at 639.
III
As is the case with the special master and the Court of Federal Claims, this panel
is obligated to follow the law of the circuit as expressed in Brice. Until overturned by the
Supreme Court or an en banc decision of this court, Brice is good law. Texas American
Oil Co. v. United States Dep’t of Energy, 44 F.3d 1557, 1561 (Fed. Cir. 1995) (en banc)
(“This court applies the rule that earlier decisions prevail unless overruled by the court
en banc, or by other controlling authority such as intervening statutory change or
Supreme Court decision.”). Because it is not disputed that the petition for relief under
the Vaccine Act in this case was filed outside the time provided by the statute of
limitations, we must affirm.
COSTS
No costs.
2008-5019 3