Filed: Mar. 06, 2014
Latest Update: Mar. 06, 2014
Summary: DECISION 1 LAURA D. MILLMAN, Special Master. Petitioner filed a petition on October 22, 2013, under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa-10-34 (2012), alleging that measles-mumps-rubella ("MMR") and varicella vaccines administered to her daughter Kyla Lee resulted in neurological injury occurring in late 2010 or thereafter. Petitioner did not file any medical records. On January 16, 2014, the undersigned held a telephonic status conference with petitioner and respond
Summary: DECISION 1 LAURA D. MILLMAN, Special Master. Petitioner filed a petition on October 22, 2013, under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa-10-34 (2012), alleging that measles-mumps-rubella ("MMR") and varicella vaccines administered to her daughter Kyla Lee resulted in neurological injury occurring in late 2010 or thereafter. Petitioner did not file any medical records. On January 16, 2014, the undersigned held a telephonic status conference with petitioner and responde..
More
DECISION1
LAURA D. MILLMAN, Special Master.
Petitioner filed a petition on October 22, 2013, under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that measles-mumps-rubella ("MMR") and varicella vaccines administered to her daughter Kyla Lee resulted in neurological injury occurring in late 2010 or thereafter. Petitioner did not file any medical records.
On January 16, 2014, the undersigned held a telephonic status conference with petitioner and respondent, during which petitioner's counsel stated he had not yet received the medical records.
On February 21, 2014, the undersigned held another telephonic status conference with petitioner and respondent, during which petitioner's counsel said he had received most of the medical records from petitioner and was concerned about whether or not petitioner had filed her petition within three years of the onset of her daughter's speech delay. He was going to clarify the onset of Kyla's speech delay by conversing with his client.
On March 6, 2014, the undersigned held another telephonic status conference with petitioner and respondent, during which petitioner's counsel moved to dismiss based on the expiration of the statute of limitations. His conversation with petitioner clarified that Kyla's speech delay occurred more than 36 months before petitioner filed her petition.
The undersigned grants petitioner's motion and dismisses her case.
DISCUSSION
The United States is sovereign and no one may sue it without the sovereign's waiver of immunity. United States v. Sherwood, 312 U.S. 584, 586 (1941). When Congress waives sovereign immunity, courts strictly construe that waiver. Library of Congress v. Shaw, 478 U.S. 310 (1986); McGowan v. Sec'y of HHS, 31 Fed. Cl. 734, 740 (1994); Edgar v. Sec'y of HHS, 29 Fed. Cl. 339, 345 (1993); Patton v. Secretary of HHS, 28 Fed. Cl. 532, 535 (1993); Jessup v. Sec'y of HHS, 26 Cl. Ct. 350, 352-53 (1992) (implied expansion of waiver of sovereign immunity was beyond the authority of the court). A court may not expand on the waiver of sovereign immunity explicitly stated in the statute. Broughton Lumber Co. v. Yeutter, 939 F.2d 1547, 1550 (Fed. Cir. 1991).
Section 16(a)(2) of the Vaccine Act states that "no petition may be filed for compensation under the Program" for an alleged "injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset" of the alleged illness. 42 U.S.C. § 300aa-16(a)(2) (2012).
Petitioner admits in her oral motion that her daughter's onset of speech delay occurred more than 36 months before she filed her petition and orally moves to dismiss.
The undersigned GRANTS her motion to dismiss. This petition is hereby DISMISSED.
CONCLUSION
This petition is DISMISSED. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
