Verity v. Secretary of Health and Human Services
11-106
| Fed. Cl. | May 3, 2017Background
- Petitioner Carl J. Verity filed a Vaccine Program petition on February 18, 2011, alleging Guillain-Barré syndrome from an influenza vaccine.
- Parties settled via stipulation on March 24, 2014; the Special Master adopted the stipulation on March 26, 2014, and judgment entered May 1, 2014.
- Vaccine Rule 13 requires fee applications be filed within 180 days after judgment (i.e., by October 28, 2014).
- Petitioner filed a motion for attorney’s fees and costs on February 20, 2017, requesting $28,861.25—over two years after the deadline—and concurrently sought an extension of time.
- Respondent acknowledged untimeliness and left disposition to the Special Master.
- The Special Master concluded Petitioner offered no adequate excuse for the multi-year delay and denied both the extension and the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court should excuse filing fee application more than two years late | Verity sought an extension and asked the court to consider the late fee application | Secretary noted the request was untimely and deferred to the Special Master’s discretion | Denied—untimely by years with no adequate excuse; not excusable neglect |
| Whether counsel’s unfamiliarity with Program deadlines constitutes excusable neglect | Counsel implicitly argued circumstances justified late filing | Respondent argued timeliness requirement should be enforced | Denied—attorney ignorance is not excusable; counsel should know Program rules |
| Whether permitting such a late fee application would prejudice the Program or set a problematic precedent | Petitioner did not persuasively argue lack of harm | Respondent cautioned against undermining deadlines | Held: Allowing lenience would subvert deadlines and encourage egregious lateness; denial preserves deadline integrity |
| Whether post-deadline relief could be granted under excusable neglect principles | Petitioner sought relief citing Rule 6/Pioneer factors implicitly | Respondent relied on lack of justification and discretion of Special Master | Held: Under Pioneer factors, delay and reason do not support excusable neglect; relief denied |
Key Cases Cited
- Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993) (established four-factor test for excusable neglect)