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No. l5-102V
JUN 2 7 2016
(Filed Under Seal: June 9,2016) U.S. COURT OF
FEDERAL CLAIMS
(Refiled for Public Availability: J:ume 27 ,2016)l
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SUSAN MARSHALL.
Petitioner,
* Dismissal of Vaccine Claim; Pro Se
* Petitioner; Failure to Prosecute.
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
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Susan Marshall Norcross, Georgia, pro se Petitioner.
Adriana Teitel, with whom were Benjamin C. Mizer, Principal Deputy Assistant Attomey
General, Rupa Bhattacharyya, Director, Vincent J. Matanoski, Deputy Director, and
Gabrielle M. Fielding, Assistant Director, Torts Branch, Civil Division, U.S. Department
of Justice, Washington, D.C., for Respondent.
OPINIONAND ORDER
WHEELER, Judge.
This vaccine case is before the Court on Petitioner's motion for review ofthe Special
Master's January 7,2016 decision dismissing this petition for failure to prosecute under
Vaccine Rule 2l(b), and granting Respondent's motion to dismiss. Marshall v. Sec'y of
Health and Human Servs., No. 15-102V, slip op. (Fed. Cl. Spec. Mstr. Jan.7,20\6)
I 'l'his opinion was originally
filed on June 9,2016 and held under seal for fourteen days during which the parties
had the opportunity to consult and indicate to Chambers any appropriate redactions, No redaction requests were
received, and this Opinion is now public. Rules ofthe Court ofFederal Claims (,,RCFC"), App. B, Rule l8(b).
(hereinafter the "Decision"). For the reasons explained below, the Court affirms the
Soecial Master's dismissal decision.
Backqround
On February 2, 2015, Petitioner Susan Marshall, acting pro se, liled this petition
under the National Vaccine Injury Compensation Program,42 U.S.C. $$ 300aa-l to -34
("Vaccine Act"), seeking compensation for the death of her adult son, Antron Javar
Thompson. Although the Petition and accompanying medical records are very difficult to
understand, it seems that Petitioner is alleging that her son died as a result of complications
{iom an influenza vaccination given to him while he was being treated for a variety of
medical conditions in U.S. Veterans Administration f'VA") facilities. The date of
administration ofthe vaccination is not clear liom Petitioner's filings. The death certificate
fbr her son shows a date of death ofJanuary 30, 2013. Pet. Ex. 1 at 166.
On May 28,2015, Chief Special Master Nora Beth Dorsey, who was then presiding
over this case, conducted an initial status conference by telephone. In her order following
the conference, the Chief Special Master noted her explanation to Ms. Marshall that this
Court's jurisdiction is limited to vaccine injury claims and the Court would not address her
other complaints against the VA. The Chief Special Master included in her order a list of
attorneys willing to represent petitioners in vaccine cases, as well as a deadline of July 3 i,
2015 to notiff the Court ofher decision on retaining an attorney. Order, June 1, 201 5, Dkt.
No. 9. A subsequent Order by the Special Master indicated that the June Order sent by
the Court to Petitioner had been retumed as undeliverable on August 4,2015, and ordered
Petitioner to contact the court by September 23, 2015, or else her claim would be dismissed
for failure to prosecute. Order, August 20,2015, Dkt. No. 11. As noted in the docket, Ms.
Marshall did contact the court by email before the September 23 deadline, requesting that
the listofvaccine attorneys be sentto heragain. This was done by another Special Master's
Order, which extended the time for substitution ofcounsel to October 28,2015. Order,
September 4,2015, Dkt. No. 12. On October 29,2015, Petitioner filed with the Court a
"Motion for Substitution of Counsel," which seems to indicate that Petitioner was unable
to retain counsel after contacting one of the attomeys on the list supplied by the Special
Mastcr. Dkt. No. 17.
On October 28,2015, this case was reassigned to Special Master Mindy Roth, who
issued the dismissal decision under review here. In an order to Show cause flled on
November 10, 2015, Special Master Roth indicated that her office had attempted to reach
Ms. Marshall by email and telephone without success, and that the Special Master wished
to hold a status conference in this case. She also noted Petitioner's failure to comolv with
the September 4, 201 5 order as well as her failure to keep the courr apprised ofhei ctntact
infomation. The Show cause order required Ms. Marshall to provide more specific
information identifying the date and name ofthe vaccination she believed caused her son's
death, and its location in the medical records Petitioner submitted. The Order attached a
ibrm to be used by Petitioner to help her set out a timeline of events leading to her son's
death, including the date of vaccination claimed to have caused his death. The deadline
for submission of this information was set at December 10, 2015. Special Master Roth
concluded the Show Cause Order with a warning that failure to comply would result in
immcdiatc dismissal, especially since this would be the second time Petitioner had failed
to comply with such an Order in this case. Order, November 10,2015, Dkt. No. 18.
Although there is nothing in the record to show that the Order and accompanying forms
were returned as undeliverable, nothing further was heard from Petitioner before
Special Master Roth issued her decision dismissing this case on January 7,2016.
Petitioner's Motion for Review is also difficult to understand, but she apparently
maintains that she did not receive some of the Orders in this case including the November
10 Show Cause Order, even though they were not retumed as undeliverable. However,
Petitioner did receive the list of attorneys willing to replesent pro se petitioners, see her
Letter, Dkt. No. 17, and her Motion lbr Review, Dkt. No. 21, at p. 11. She also received
the Dismissal Order. Id. at 12.
Jurisdiction and Standard of Review
This Court has jurisdiction to review the vaccine decisions of the Special Masters
in accordance with 42 u.s.c. $ 3 00aa- 12(e)( I )-(2). The Special Master's findings of fact
receive deferential review under an "arbitrary and capricious" standard, while the Court
reviews legal conclusions under the "not in accordance with law" standard, and
discretionary rulings for an "abuse of discretion." Munn v. Sec'y of Health & Human
Servs.,970 F.2d 863, 870 n.10 (Fed. Cir. 1992). A dismissal for failure to prosecute is
reviewed under the abuse of discretion standard. Claude E. Atkins Enters., Inc. v. United
States, 899 F.2d 1180, 1183 (Fed. Cir. 1990); Adkins v. United States, 816 F.2d 1580, 1582
(Fed. Cir. 1987).
Discussion
Special Master Roth's decision details the instances where Petitioner failed to
comply with court ordels during the pendency of this case. It appears from the record that
Petitioner did not keep the Court inforrned of her contact information, despite many
attempts by each of the Special Masters and their staff to contact her. Special Master
Roth's November 10, 2015 Show Cause Order provided to Petitioner guidance on
explaining her case without benefit of counsel, since it appeared that she was unable to
secure legal assistance. Petitioner has never responded to the directives in that Order.
It appears that the two Special Masters assigned to the case each made an effort to
accommodate Petitioner's pro se status, but were unable to effectively communicate with
her despite their efforts. Vaccine Rule 2 1 (b) provides for involuntary dismissal by a special
master for "failure of the petitioner to prosecute or comply with these rules or any order of
the special master or the court." Failure to obey court orders constitutes a valid ground for
dismissal at the discretion of the Special Master. See Padmanabhan v. Sec'y of Health &
Human Servs., No.2016-1074,2016WL 463085 (Fed. Cir. Feb. 8,2016); Tsekouras v.
Sec'y of Health & Human Servs. ,26 Cl. Ct. 439 (1992). "While dismissal of a clairn is a
harsh action, especially to a pro se litigant, it is justified when a party fails to pursue
litigation diligently and disregards the court's rules and show cause order." Whiting v.
United States, 99 Fed. Cl. 13,17 (2011). The Court is mindful of Petitioner's pro se status
and has carefully considered the possibility that Petitioner may not be familiar with the
Court's rules. Although pro se litigants are generally afforded some leniency in procedural
matters, they cannot lail to provide essential contact information nor may they disregard
the timetables set by court orders and rules. See Carpenter v. United States, 38 Fed. Cl.
576, 578 (1997). In this case, the Courl finds that the Special Master did not abuse her
discretion in dismissing this case.
Respondent also filed a motion to disrniss the petition in this case, Dkt. No. 6, based
on a claim of untimely filing of the petition under the statute of lirnitations for vacctne
injury claims,42 USC $ 300aa-16(a)(3). Because the Court has afhrmed the Special
Master's dismissal for failure to prosecute, this issue need not be addressed.
Petitioner's Motion for Review is DENIED.
IT IS SO ORDERED,
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THOMAS C. WHEELER
Judge